BANCROFT 
LIBRARY 

o 

THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


DEFENCE 


OF 


LIEUT.  COL.   JCV  FREMONT, 


BEFORE    THE 


MILITARY  COURT  MARTIAL. 


WASHINGTON,   JANUARY,  1848. 


' 

COL  ] 


•EFEICE  OF  LT.  COL.  FREMONT, 

BEFORE  THE  COURT  MARTIAL, 


JANUARY,    1848. 


MR.  PRESIDENT:  The  crimes  with  which  I  stand  charged  are, 
1.  MUTINY.  2.  DISOBEDIENCE  or  ORDERS.  3.  CONDUCT  PREJUDI 
CIAL  TO  GOOD  ORDER  AND  DISCIPLINE.  Either  of  these  would  be  suf 
ficiently  grave  in  itself;  united,  they  become  an  assemblage  of 
crimes  probably  never  before  presented  against  an  American  officer. 
They  descend  from  the  top  to  the  bottom  of  the  military  gradation 
of  crime;  from  that  which  is  capital  and  infamous,  to  what  involves 
but  little  of  disgrace  or  punishment;  but  from  the  whole  of  which 
it  becomes  me  to  defend  myself,  and  from  each,  in  its  order,  accord 
ing  to  the  degree  of  its  enormity. 

The  crime  of  mutiny  stands  at  the  head  of  military  offences,  and, 
in  this  case,  is  presented  with  all  the  aggravations  of  which  it  is 
susceptible;  rank  in  the  offender — time  of  war — in  a  foreign  coun 
try — base  and  sordid  motive — wilful  persistance. 

It  is  the  most  dangerous  of  military  crimes,  and,  therefore,  the 
most  summarily  and  severely  punished.  Any  officer  present  at  a 
mutiny  "becomes  the  judge  and  punisher  of  the  offence  upon  the 
instant,  and  may  kill  the  mutineer  upon  the  spot,  without  trial  or 
warning.  More  than  that,  he  becomes  a  great  offender  himself  if  he 
does  not  do  his  utmost  to  suppress  the  mutiny, which  he  witnesses, 
and  may  be  punished  with  death,  or  such  other  punishment  as  a 
court  martial  may  award.  It  is  the  only  case  in  which  death  may 
be  inflicted  without  trial;  in  all  other  cases,  the  supposed  offender 
is  presumed  to  be  innocent  until  he  is  convicted,  and  cannot  be 
punished  until  he  has  been  tried. 

Of  this  great  crime,  with  all  the  aggravations  of  which  it  is  sus 
ceptible,  I  am  charged  to  have  been  guilty,  and  continuously  so,  from 
the  17th  day  of  January,  1847,  to  the  9th  day  of  May  following,  both 
days  inclusive;  during  all  which  time  I  was  liable  to  have  been 
killed  by  any  officer  present  who  believed  me  guilty.  I  was  not 
killed;  but  am  now  here  to  be  tried',  and  with  the  presumption  of 
guilt  against  me  from  the  fact  of  being  ordered  to  be  tried. 

The  order  to  put  an  officer  upon  trial  is  a  declaration,  virtually 
so,  on  the  part  of  the  high  authority  giving  the  order,  of  probable 
guilt.  It  is  equivalent  to  the  "true  bill"  endorsed  by  the  grand 
jury  on  the  bill  of  indictment;  and,  in  this  case,  is  equivalent  to 


three  such  endorsements  on  three  separate  bills,  for  three  several 
crimes;  for  the  order  for  my  trial  extends  to  the  three  different 
charges  upon  which  I  am  arraigned,  and  with  the  trial  of  the  whole 
of  which  this  court  is  charged. 

Mutiny  is  not  defined  in  the  United  States  rules  and  articles  of 
•war,  or  in  the  British  mutiny  act  from  which  they  are  copied,  and 
the  decisions,  as  to  what  will  constitute  the  crime,  are  very  various 
in  both  countries.  I  only  refer  to  this  want  of  definition  of  the 
offence,  and  to  these  various  decisions,  to  say  that  I  have  no  objec 
tion,  in  my  own  case,  to  have  my  conduct  judged  by  any  case  that 
"was  ever  decided  to  be  mutiny,  either  in  this  country  or  in  Great 
Britain,  strange  and  extraordinary  as  some  of  these  cases  may 
appear. 

The  first  act  of  this  crime,  alleged  against  me,  is  found  in  this 
letter,  set  out  as  the  basis  of  specification  first  infcharge  first. 

ClUDAD  DE  LOS  ANGELES, 

January  17,  1847. 

SIR:*  I  have  the  honor  to  be  in  receipt  of  your  favor  of  last  night, 
in  which  I  am  directed  to  suspend  the  execution -of  orders,  which, 
in  my  capacity  of  military  commandant  of  this  territory,  I  had  re 
ceived  from  Commodore  Stockton,  governor  and  commander-in- 
chief  in  California.  I  avail  myself  of  an  early  hour  this  morning, 
to  make  such  a  reply  as  the  brief,  time  allowed  for  reflection  will 
enable  me. 

I  found  Commodore  Stockton  in  possession  of  the  country,  ex 
ercising  the  functions  of  military  commandant  and  civil  governor, 
as  early  as  July  of  last  year;  and.  shortly  thereafter  I  received  from 
him  the  commission  of  military  commandant,  the  duties  of  which  I 
immediately  entered  upon,  and  have  continued  to  exercise  to  the 
present  moment.  , 

I  found  also,  on  my  arrival  at  this  place  some  three  or  four  days 
since,  Commodore  Stockton  still  exercising  the  functions  of  civil 
and  military  governor,  with  the  same  apparent  deference  to  his  rank 
on  the  part  of  all  officers  (including  yourself)  as  he  maintained  and 
required  when  he  assumed  in  July  last. 

I  learned  also,  in  conversation  with  you,  that  on  the  march  from 
San  Diego,  recently,  to  this  place,  you  entered  upon  and  discharged 
duties,  implying  an  acknowledgement  on  your  part  of  supremacy  to 
Commodore  Stockton. 

I  feel,  therefore,  with  great  deference  to  your  professional  and 
personal  character,  constrained  to  say  that,  until  you  and  Commo- 
,dore  Stockton  adjust  between  yourselves  the  questkm  of  rank,  where 
I  respectfully  think  the  difficulty  belongs,  I  shall  have  to  -report 
and  receive  orders,  as  heretofore,  from  the  commodore. 

With  considerations  of  high  regard,  I  am,  sir,  your  obedient  ser 
vant, 

J.  C.  FREMONT, 

Lieutenant  Colonel  U.  S.  Army,  and  Military 
Commandant  of  the  Territory  of  California. 

Brig,  Gen.  S.  W.  KEARNY, 

United  States  army. 


If  this  letter  is  mutiny,  Mr.  President,  I  shall  now  add  another 
aggravation  to  the  five  aggravations  already  attending  it;  I  shall 
justify  it  before  this  court!  and  now  most  respectfully  declare  that 
I  would  write  the  same  letter  over  again  under  the  same  circum 
stances.  But  being  prosecuted  for  it,  I  am  bound  to  defefcd  myself, 
and  proceed  to  do  it. 

In  making  this  defence,  I  have  some  RIGHTS,  which  I  propose  to 
use,  and  my  authority  for  which  will  be  found  in  Hough,  p.  952, 
tand  which  I  now  read,  that  the  court 'may  see  the  nature  and  extent 
of  the  rights  which  I  suppose  to  belong  to  me. 

Major  Hough  says: 

"The  prisoner's  defence  ought  to  be  confined  to  any  statement  of 
his  own  case  which  he  may  think  proper  to  offer  to  the  court,  in 
contradiction  to  what  has  been  stated  by  the  prosecutor  in  his 
opening  address,  and  to  observations  upon  evidence  Which  has  been 
given  against  nim,  and  to  the  offering  any  remarks  upon  any  writ 
ten  evidence  which  may  have  been  introduced  in  the  course  of  that 
evidence.  He  is  likewise, at  full  liberty  to  remark  upon  the  nature 
of  the  evidence  given  on  the  part  of  the  prosecution,  and  to  show, 
if  he  can,  where  there  is  any  contradictory  evidence,  and  to  im 
pugn  the  credit  of  the  witnesses  that  have  been  examined;  to  ob 
serve  upon  the  non-production  of  witnesses,  who  could  have  bet 
ter  informed  the  court;  to  urge  the  improbability  that  he  should 
have  acted  in  the  manner  imputed  to  him; 'and  to  urge  all  these 
circumstances  to  the  kind  consideration  of  the  court;  and  if  "there 
have  been  any  hostile  feelings  expressed  by  the  prosecutor  towards 
him,  in  remarking  upon  such  a  circumstance,  or  as  to  the  motives 
of  the  prosecutor,  it  shall  be  done  in  a  manner  that  shall  not  be 
disrespectful  to  the  court." 

These  are  my  rights  before  this  court,  and  all  of  which  I  shall 
have  occasion  to  exercise,  except  in  one  single  particular,  that  of 
recommending  my  defence  to  the  kind  consideration  of  the  court. 
I  will  substitute  just  for  kind,  as  being  more  suitable  to  the  char 
acter  of  a  judicial  tribunal,  impersonated  with  bandaged  eyes,  to 
imply  a  disregard  to  persons — as  more  suitable  to  my  own  case, 
which  requires  justice  and  not  kindness,  and  more  agreeable  to  my 
self-respect,  which  will  be  best  satisfied  with  a  defence  on  the  basis 
of  rigid  right.  With  this  exception,  and  with  that  reserve  of  de 
corum  which  it  needed  no  book  injunction  to  impose  upon  me,  I 
shall  proceed  to  state  my  defence,  and  to  do  it  with  the  care  and 
precision  which  the  gravity  of  the  accusation  demands. 

And  first,  my  own  statement: 

The  two  superior  officers  in  California,  with  whom  the.'difficulties 
began,  (Commodore  Stockton  and  General  Kearny,)  have  each  had 
the  benefit  of  stating  his  own  case  before  this  court)  showing  under 
what  authority  they  went  and  acted,  what  they  did,  and  how  they 
became  involved  with  one  another,  and  how  I  became  involved  in 
their  contest. 

An  incident,  and  a  subordinate  in  this  contest,  where  it  originated, 
and  turned  up  as  principal  figure  in  it  here  for  criminal  prosecution, 
J  am  happy  to  find  that  my  rights,  in  one  respect,  are  at  least  equal 


to  theirs— that  of  stating  my  own  case  as  fully  as  they  stated  theirs, 
and  showing  howr  I  became  principal  in  a  contest  which  was  theirs 
before  I  heard  of  it,  or  came  near  them;  and  which,  as  suggested 
heretofore,  ought  to  have  been  settled  between  themselves,  or  by 
the  government,  whose  authority  they  both  bore.  A  subordinate 
in  rank,  as  in  the  contest,  long  and 'secretly  majrked  out  for  prose 
cution  by  the  commanding  general,  assailed  in  newspaper  publica 
tions  when  three  thousand  miles  distant,  and  standing  for  more  than 
two  months  before  this  court  to  hear  all  that  could  be  sworn  against 
iny  private  honor  as  well  as  against  my  official  conduct,  I  come  at 
last  to  the  right  to  speak  for  myself. 

'In  using  this  privilege,  I  have  to  ask  of  this  court  to  believe  that 
the  preservation  of  a  commission  is  no  object  of  my  d.efence.  It 
came  to  me,  as  did  those  which  preceeded  it,  without  asking,  either 
by  myself,  or  by  any  friend  in  my  behalf.  I  endeavored  to  resign 
it  in  California,  through  General  Kearny,in  March  last,  (not  know 
ing  of  his  design  to  arrest  me,)  when  it  was  less  injurious  to  me 
than  it  is  at  present.  Such  as  it  now  is,  it  would  not  be  worth  one 
moment's  defence  before  this  court.  But  I  have  a  name  which  was 
without  a  blemish  before  I  received  that  commission;  and  that  name 
it  is  my  intention  to  defend. 

-In  the  winter  of  1845-6,  I  approached  the  settled  parts  of  Upper 
California  with  a  party  of  sixty-two  men  and  about  two  hundred 
horses,  in  my  third  expedition  of  discovery  and  topographical  sur 
vey  in  the  remote  regions  of  the  great  west. 

I  was  then  brevet  captain  in  the  corps  of  topographical  engineers, 
and  had  no  rank  in  the  army,  nor  did  an  officer  or  soldier  of  the 
United  States  army  accompany  me.; 

The  object  of  the  expedition,  like  that  of  the  two  previous  orWs, 
was  wholly  of  a  scientific  character,  without  the  least  view  to  mil 
itary  operations,  and  with  the  determination  to  avoid  them,  as  be 
ing  not  only  unauthorized  by  the  government,  but  detrimental  or 
fatal  to  the  pursuit  in  which  I  was  engaged.  The  men  with  me  were 
citizens,  and  some  Delaware  Indians,  all  employed  by  myself  on 
wages,  and  solely  intended  for  protection  against  satages,  and  to 
procure  subsistence  in  the  wilderness,  and  often  desert  country, 
through  which  I  had  to  pass. 

I  had  left  the  United  States  in  May,  1845 — a  year  before  the  war 
with  Mexico  broke  out;  but  I  was  aware  of  the  actual  state  of  af 
fairs  between  the  two  countries,  and  being  'determined  to  give  no 
cause  of  offence  to  the  Mexican  authorities  in  California,  I  left  my 
command  at  the  distance  of  about  two  hundred  miles  from  Monte 
rey  and  proceeded,  almost  alone,  to  the  nearest  military  station, 
that  of  New  Helvetia,  (or  Suter's  fort)  and  obtained  , a  passport 
(which  I  now  have)  for  myself  and 'attendants  to  proceed  to  Mon 
terey,  the  residence  of  the  commandant  general  or  deputy  governor, 
General  Castro. 

Arrived  at  Monterey,  I  called  u£on  the  commandant  and  other 
authorities,  in  company  with  the  United  States  consul,  and  with  ail 
the  formalties  usual  on  such  occasions,  and  was' civilly  received. 
I  explained  to  General  Castro  the  object  of  my  coming  into  Cali 
fornia,  and  my  desire  to  obtain  permission  to  winter  in  the  valley 


of  the  San  Joaquim,  for  refreshment  and  reptose,  where  there  was 
plenty  of  game  for  the  men  and  grass  for  the  horses,  and  no  inhab 
itants  to  be  molested  by  our  presence.  Leave  was  granted,  ami 
also  leave  to  continue  my  explorations  south  to  the  region  of  the 
Rio  Colorado  and  of  the  Rio  Gila. 

In  the  last  days  of  February,  I  commenced  the  march  south, 
crossing  into  the  valley  of  the  Salinas,  or  Buenaventura,  and  soon 
received  a  notification  to  depart,  with  information  that  Gen.  Castro 
was  assembling  troops  with  a  view  to  attack  us,  under  the  pretext 
that  I  had  come  to  California  to  excite  the  American  settlers  to  re 
volt.  The  information  of  this  design  was  authentic,  and  with  a 
view  to  be  in  a  condition  to  repel  a  superior  force,  provided  with 
cannon,  I  took  a  position  on  the  Sierra,  called  the  Hawk's  Peak, 
entrenched  it,  raised  the  flag  of  the  United  States,  and  awaited  the 
approach  of  the  assailants. 

At  the  distance  of  four  miles  we  could  see  them,  from  the  Sierra', 
assembling  men  and  hauling  out  cannon;  but  they  did  not  approach 
nearer  ;  and  after  remaining  in  the  position  from  the  7th  to  the 
10th  of  March,  and  seeing  that  we  were  not  to  be  attacked  in  it, 
an-d  determined  not  to  compromise  the  government  of  the  United 
States,  or  the  American  settlers,  who  were  ready  to  join  me  at  all 
hazards,  I  quit  the  position,  gave  up  all  thoughts  of  prosecuting 
my  researches  in  that  direction,  and  turned  north  towards  Oregon. 

Disappointed  in  the  favorite  design,  of  examining  the  southern 
parts  of  the  Mta  California,  and  the  valley  of  Rio  Colorado  and 
Gila,  I  formed  another  design  which  I  hoped  would  be  of  some 
service  to  my  country,  that  of  exploring  a  route  to  the  Wah-lah- 
math  settlement*  in  Oregon,  by  the  Tlamath  lakes;  and  thence  to 
return  to  the  United  States  by  a  high  northein  route,  exploring  the 
country  in  that  direction.  In  pursuance  of  this  plan,  and  before 
the  middle  of  May,  we  had  reached  the  northern  shore  of  the  Great 
Tlamath  lake,  within  the  limits  of  Oregon,  when  we  found  our  fur 
ther  progress  in  that  direction  obstructed  by  impassable  snowy 
mountains  and  hostile  Indians,  of  the  formidable  Tlamath  tribes, 
who  had  killed  or  wounded  four  of  our  men,  and  left  us  no  repose 
either  upon  the  march  of  in  the  camp. 

We  were  now  at  the  north  end  of  the  Greater  Tlamath  lake,  in 
the  territory  of  Oregon,  when  on  the  morning  of  the  9th  I  was 
surprised  to  find  ride  up  to  our  camp,  two  men — one  turned  out  to 
be  Samuel  Neal,  formerly  of  my.  topographical  party,  and  his  com 
panion,  who  quickly  informed  me  that  a  United  States  officer  was 
on  my  trail,  with  despatches  for  me,  but  he  doubted  whether  he 
would  ever  reach  me;  that  he  and  his  companion  had  only  escaped 
the  Indians  by  the  goodness  of  their  horses;  and  that  he  had  left 
the  officer,  with  three~men,  two  days  behind. 

Upon  the  spot  I  took  nine  men,  four  of  them  Delaware  Indians, 
coasted  the  western  shore  of  the  lake  for  sixty  miles,  and  met  the 
party. 

The  officer  was  Lieutenant  Gillespie.  He  brought  me  a  letter  of 
introduction  from  the  Secretary  of  State,  (Mr.  Buchanan,)  and  let 
ters  and  papers  from  Senator  Benton,and  his  family.  The  letter 
from  the  Secretary  imported- nothing  beyond  ,the  introduction,  and 


was  directed  to  me  in  my  private  or  citizen  capacity.  The  outside 
envelope  of  a  packet  from  Senator  Benton  was  directed  ;n  the  same 
way,  and  one  of  the  letters  from  him,  while  apparently  of  mere 
friendship  and  family  details,  contained  passages  enigmatical  and 
obscure,  but  which  I  ^tudied  out,  and  made  the  meaning  to  be  that 
•I  was  required\by  the  government  to  find  out  any  foreign  schemes 
in  relation  to  the  Californias,  and  to  counteract  them.  Lieutenant 
Gillespie  was  bearer  of  despatches  to  the. United  States  consul  at 
Monterey,  and  \ras  directed  to  find  me  wherever  I  might  be;  and 
he  had,  in  fact,  travelled  above  six  hundred  miles  from  Monterey,, 
and  through  great  dangers,  to  reach  me. 

He  had  crossed  the  continent  through  the  heart  of  Mexico,  from 
Vera  Cruz  to  Mazatlan,  and  the  danger  of  his  letters  falling  into 
the  hands  of  the  Mexican  government  had  induced  the  precautions 
to  conceal  their  meaning.  The  arrival  of  this  officer,  his  letter  of 
introduction,  some  things  which  he  told  me,  and  the  letter  from 
Senator  Benton,  had  a  decided  influence  on  my  ne^ct  movement. 

Three  men  were  killed  in  our  camp  by  the  Indians  the  night 
Lieutenant  Gillespie  delivered  his  letters.  We  returned  to  the 
camp  at  the  north  end  of  the  lake,  pursued  and  waylaid,  but  killing 
two  of  the  assailants  without  loss. ' 

I  determined  to  return  to  the  unsettled  parts  of  the  Sacramento, 
and  did  so.  '  Soon  the" state  of  things  in  California  was  made  known 
to  me;  General  Castro  approaching  with  troops;  the  Indians  of 
California  excited  against  us;  the  settlers  in  danger  as  well  as  our 
selves,  and  all  looking  to  me  for  help. 

We  made  common  cause,  and  I  fletermined  to  seek  safety,  both 
for  them  and  ourselves;  not  merely  in  the  defeat  of  Castro,  but  in 
the  total  overthrow  of  Mexican  authority  in  California,  and  the  es 
tablishment  of  an  independent  government  in  that  extensive  pro 
vince.  In  concert,  and  in  co-operation  with  the  American  settlers, 
and  in  the  brief  space  of  about  thirty  days,  all  was  accomplished 
north  of  the  Bay  of  San  Francisco,  and  independence  declared  on 
the  5th  day  of  July.  This  was  done  at  Sonoma,  where  the  Ameri 
can  settlers  had  assembled.  I  was  called,  by  my  position,  and  by 
the  general  voice,  to  the  chief  direction  of  affairs,  and  on  the 
next  day,  at  the  head  of  160  mounted  riflemen,  set  out  to  find 
General  Castro.  He  was  then  at  Santa  Clara,  on  the  south  side  of 
the  bay,  in  an  entrenched  camp,  with  400  men  and  some  pieces  of 
artillery.  We  had  to  make  a  circuit  round  the  head  of  the  bay, 
and  on  the  10th  day  of  July,  when  near  Suter's  fort,  we  received 
the  joyful^  intelligence  that  Commodore  Sloat  was  at  Monterey; 
had  taken  it  on  the  7th,  and  that  war  existed  between  the  United 
States  and  Mexico.  Instantly  we  pulled  down  the  flag  of  inde 
pendence,  and  ran  up  that  of  the  United  States. 

A  despatch  from  Commodore  Sloat.  requested  my  co-operation, 
and  I  repaired  with  my  command  (160  mounted  rifles)  to  Monterey. 
I  was  ready  to  co-operate  with  him,  but  his  health  requiring  him 
to  return  to  the  United  States,  he  relinquished  the  command  to 
Commodore  Stockton.  He  (Commodore  §tockton)  determined  to 
prosecute  hostilities  to  the  fwll  conquest  of  the  country,  and  asked 
not  co-operation,  but  service  under  him.  He  made  this  proposal 


in  writing  to  Lieutenant  Gillespie  and  myself.  We  agreed  to  it, 
and  so  did  our  men,  the  latter,  as  Commodore  Stockton  so  em 
phatically  testified  before  'this  court,  refusing  to  stickle  about 
terms  and  pay,  giving  their  services  first,  and  trusting  their  govern 
ment,  far  distant  as  it  was,  to  do  them  justice. 

Commodore  Stockton  has  proved  the  terms  of  our  engagement 
with  him,  and  that  we  became  a  part  of  the  naval  forces  under  his 
command.  I  went  under  him  with  pleasure.  I  was  glad  to  be  re 
lieved  from  the  responsibilities  of  my  position.  At  the  same  time 
I  had  no  doubt  but  that  the  riflemen  with  me  would  have  chased 
Castro,  with  his  troops,  out  of  the  country,  and  that  the  Califor- 
nian  population  might  be  conciliated.  If  Commodore  Stockton  had 
not  taken  the  command  and  lead  in  the  war,  I  should  have  contin 
ued  the  work  as  I  had  begun  it,  with  the  men  of  my  topographical 
party,  and  the  American  settlers,  and  had  not,  and  have  not,  a 
doubt  of  our  success. 

We  (Lieutenant  Gillispie  and  myself)  joined  Commodore  Stock 
ton  for  the  public  good,  and  with  some  sacrifice  of  our  independent 
positions.  Neither  of  us  could  have  'been  commanded  by  him,  ex 
cept  upon  our  own  agreement.  I  belonged  to  the  army,  and  was 
at  the  head  of  the  popular  movement  in  California.  The  common 
voice  of  the  people  called  me  to  the  head  of  affairs^  and  I  was 
obeyed  with  zeal  and  alacrity.  Lieutenant  Gillespie  was  of  the 
marines,  and  was,  besides,  on  special  duty,  by  orders  of  the  Presi 
dent,  and  no  officer  of  any  rank  could  interfere  with  him.  We 
might  have  continued  our  independent  position,  and  carried  on  the 
war  by  land.  We  judged  it  best  for  the  United  States  to  relinquish 
that  independence,  take^ervice  under  Commodore  Stockton,  obey 
him;  and  we  did  so.  His  testimony  is  complete  on  this  point.  We 
became  part  of  the  naval  forces.  We  went  under,the  command  of 
the  naval  commander  on  that  station;  and  it  was  to  the  naval  com 
manders  there  that  the  President  had  specially  assigned  the  con 
quest  of  California.  The  California  battalion  of  mounted  riflemen 
was  then  organized,  Commodore  Stockton  appointing  all  the  officers, 
myself  being  appointed  major,  and  Lieutenant  Gillespie  captain. 
From  that  time  we  were  part  of  the  naval  forces  for  the  conquest 
of  the  country. 

I  omit  details  of  naval  or  military  events,  in  order  to  come  to  the 
point  which  concerns  me. 

On  the  13th  of  August,  1846,  Commodore  Stockton,  as  conqueror, 
took  possession  of  the  City  of  the  Angels,  the  seat  of  the  governors 
general  of  California.  On  the  17th  he  issued  a  proclamation,  or 
decree,  as  such,  for  the  notification  and  government  of  the  inhabi 
tants,  followed  by  many  others  in  the  same  character,  and  for  the 
better  government  of  the  conquered  country. 

On  the  28th  of  August,  he  communicated  all  these  acts  to  the 
government  at  home,  stating  in  the  communication  that,  when  he 
should  leave  California,  he  should  appoint  Major  Fremont  governor, 
and  Captain  Gillespie  secretary.  Four  days  before  that  time, 
namely,  on  the  24th  of  August,  and  in  anticipation  of  his  own 
speedy  return  to  the  sea,  for  the  protection  of  American  commerce 
and  other  objects,  he  appointed  me  military  commandant  of  the 


8 

territory,  and  charged  me  with  enlisting  a  sufficient  force  to  garri 
son  the* country,  and  to  watch  the  Indians  and  other  enemies.  In 
that  letter  is  this  paragraph:  a  I  propose,  before  I  leave  the  terri 
tory,  to  appoint  you  to  be  governor,  and  Captain  Gillespie  to  be  sec 
retary  j  and  to  appoint  also  the  council  of  state,  and  all  the  neces 
sary  officers.  You  will,  therefore,  proceed  to  do  all  you  can  to  fur 
ther  my  views  and  intentions  thus  frankly  manifested.  Supposing 
that  by  the  2bth  of  October  you  will  have  accomplished  your  part  of 
these  preparations,  I  will  meet  you  at  San  Francisco  on  that  day, 
and  place  you  as  governor  of  California." 

A  copy  of  this  letter,  with  a  copy  of  all  the  rest  of  the  acts  of 
Commodore  Stockton,  as  governor  and  commander-in-chief  in  Cali 
fornia,  was  sent  to  the  Navy  Department,  at  the  time,  (August, 
1846,)  by  Mr.  Christopher  Carson,  who  was  met  by  General  Kearney, 
below  Santa  Fe,  on  the  Rio  Grande,  and  turned  back,  the  despatches 
Ipeingsent  on  by  Mr.  Fitzpatrick,  and  were  communicated  to  Congress 
with  the  annual  message  of  the  President  of  December,  1846,  and 
are  printed  in  the  documents  attached  to  the  message,  from  page 
668  to  675,  inclusively.  TThe  Presidential  message  itself,  and  the 
reports  of  the  Secretaries  of  War  and  Navy,  thus  referred  to  these 
acts  of  Commodore  Stockton: 

Extract  from  the  Presidents  annual  message,  December,  1846. 

Our  squadron  in  the  Pacific,  with  the  co-operation  of  a  gallant 
officer  of  the  army,  and  a  small  force  hastily  collected  in  that  dis 
tant  country,  have  acquired  bloodless  possession  of  the  Californias^ 
and  the  American  flag  has  been  raised  at  every  important  point  in 
that  province.  I  congratulate  you  on  tft  success  which  has  thus 
attended  our  military  and  naval  operations.  In  less  than  seven 
months  after  Mexico  commenced  hostilities,  at  a  time  selected  by 
herself,  we  have  taken  possession  of  many  of  her  principal  ports, 
driven  back  and  pursued  her  invading  army,  and  acquired  military 
possession  of  the  Mexican  provinces  of  New  Mexico,  New  Leon> 
Coahuila,  Tama.ulipas,  and  the  Californias,  a  territory  larger  in  ex 
tent  than  that  embraced  in  the  original  thirteen  States  of  the  Union, 
inhabited  by  a  considerable  population,  and  much  of  it  more  than 
a  thousand  miles  from  the  points  at  which  we  had  to  collect  our 
forces  and  commence  our  movements.  By  the  blockade,  the  import 
and  the  export  trade  of  the  enemy  has  been  cut  off.  By  the  Jaws 
of  nations  a  conquered  territory  is  subject  to  be  governed  by  the 
conqueror  during  his  military  possession,  and  until  there  is  either 
a  treaty  of  peace,  or  he  shall  voluntarily  withdraw  from  it.  The 
old  civil  government  being  necessarily  superseded,  it  is  -the  right 
and  duty  of  the  conqueror  to  secure  his  conquest,  and  to  provide 
for  the  maintenance  of  civil  order  and  the  rights  of  the  inhabitants. 
This  right  has  been  exercised,  and  this  duty  performed  by  our  mili 
tary  and  naval  commanders,  by  the  establishment  of  temporary 
governments  in  some  of  the  conquered  provinces  in  Mexico,  assimi 
lating  them,  as  far  as  practicable,  to  the  free  institutions  of  our  own 
country.  In  the  provinces  of  A  ew  Mexico,  and  of  the  Californias 
little,  if  any,  further  resistance  is  apprehended  from  the  inhabitants 


to  the  temporary  governments  which  have  thus,  from  the  necessity 
of  the  case,  and  according  to  the  laws  of  war,  been  established. 

It  may  be  proper  to  provide  for  the  security  of  these  important 
conquests,  by  making  an  adequate  appropriation  for  the  purpose  of 
erecting  fortification^  and  defraying  the  expenses  necessarily  inci 
dent  to  the  maintenance  of  our  possession  and  authority  over 
them. 

Extracf  from  the  report  of  the  Secretary  of  War,  December,  1846. 

Commodore  Stockton  took  possession  of  the  whole  country  as  a 
conquest;  of  the  United  States,  and  appointed  Colonel  Fremont 
governor,  under  the  law  of  nations;  to  assume  the  functions  of  that 
office  when  he  should  return  to  the  squadron. 

Extract  from  the  report  of  the  Secretary  of  the  Navy,  December , 

1846. 

On  the  25th  of  July,  the  Cyane,  Captain  Mervine,  sailed  from 
Monterey,  with  Lieutenant  Colonel  Fremont  and  a  small  volunteer 
force  on  board,  for  San  Diego,  to  intercept  the  retreat  of  the  Mexi 
can  General  Castro/  A  few  days  after,  Commodore  Stockton-sail 
ed  in  the  Congress  frigate  for  San  Pedro,  and,  with  a  detachment 
from  his  squadron  of  three  hundred  and  sixty  men,  marched  to  the 
enemy's  camp.  It  was  found  that*  the  camp  was  broken  up,  and 
that  the  Mexicans,  under  Governor  Pico  and  General  Castro,  had 
retreated  so  precipitately  that  Lieutenant  Colonel  Fremont  was  dis 
appointed  in  intercepting  him.  On  the  13th,  Commodore  Stockton 
was  joined  by  this  gallant  officer,  and  marched  a  distance  of  thirty 
miles  from  the  sea,  and  entered  without  opposition  Ciudad  de  los 
Angeles,  the  capital  of  the  Californias;  and  on  the  22d  of  August, 
the  flag  of  the  United  States  was  flying  at  every  commanding  posi 
tion,  and  California  was  in  the  undisputed  military  possession  of 
the  United  States.  The  conduct  of  the  officers  and  men  of  the 
squadron  in  these  important  operations  has  been  characterized  by 
activity,  courage,  and  steady  discipline,  and  entitles  them  to  the 
thanks  of  the  department.  Efficient  aid  was  rendered  by  Lieuten 
ant  Colonel  Fremont  and  the  volunteers  under  his  command.  In 
his  hands,  Commodore  Stockton  informs  the  department,  he  will 
leave  the  military  government  when  he  shall  ^eave  California,  in 
the  further  execution  of  his  orders. 

It  is  then  certain  that,  in  November,  1846,  the  President  had  full 
knowledge  of  Commodore  Stockton's  intention  to  appoint  me  gov 
ernor,  when  he  should  return  to  his  ship,  to  wit,  by  the  25th  of 
October;  and  in  his  message  spoke  of  all  his  acts  in  organizing  a 
civil  government  in  a  way  to  imply  entire  approbation.  At  the 
same  time  that  Commodore  Stockton  sent  his  despatches,  I  also 
wrote  to  Senator  Benton,  giving  a  brief  account,  for  his  own  infor 
mation,  of  what  had  taken  place  in  California,  and  especially  on 
the  great  point  of  having  joined  the  American  settlers  in  raising 
the  flag  of  Independence,  and  overturning  the  Mexican  government 
in  California.  It  was  done  before  we  had  knowledge  of  the  war. 
I  felt  all  its  responsibilitiesj  moral  and  political,  personal  and  offi- 


10 

eial.  It  was  a  resolve  made  by  me,  not  merely  upon  serious  b,ut 
upon  long  and  painful  reflection.  I  wrote  to  Senator  Benton,  if 
my  conduct  was  not  approved,  to  give  in  my  resignation,  and  sent 
a  blank  for  him  to  fill  up  to  that  effect.  Happy  had  it  been  for 
me  had  the  government  then  disapproved  my  conduct! 

And  here  it  becomes  me  to  state  something,  which  justice  to 
myself  and  others,  and  regard  for  history,  requires  to  be  known. 
A  few  facts  and  dates  will  establish  a  great  point. 

Commodore  Sloat  arrived  at  Monterey  on  the  2d  day  of  July; 
he  did  not  take  it;  he  hesitated.  On  the  7th,  he  did.  He  had  by 
that  time  heard  of  my  operations,  and  supposed  I  had  positive  in 
structions.  On  the  15th  of  July,  Commodore  Stockton  arrived;  on 
the  16th,  Admiral  Seymour,  in  the  Collingwood,  of  80  guns;  on 
the  19th,  the  mounted  force,  under  Lieutenant  Gillespie  and  my 
self.  Upon  priority  of  time  in  same  of  these  events  probably  de 
pended  the  fate  of  California.  Commodore  Sloat's  action  was  de- 
te.rmined  by  mine.  His  action,  on  the  7th,  anticipated  the  varrival 
of  Admiral  Seymour,  who  found  the  American  flag  flying  where  it 
is  probable  he  came  prepared  to  be  invited  to  raise  the  British. 

California  was  saved,  and  also  the  grant  of  the  three  thousand 
square  leagues  of  land  to  the  Irish  priest,  Macnamara,  (all  the 
original  papers  of  which  I  have,  to  deliver  up  to  the  government,) 
was  left  incomplete,  and  the  land  saved,  as  well  as  the  scheme  of 
colonization  defeated.  History  may  some  day  verify  these  events, 
and  show  that  the  preservation  of  California,  and  the  defeat  of 
the  three  thousand  square  leagues  grant,  covering  the  valley  of  the, 
San  Joaquin,  was  owing  to  the  action  which  determined  the  action 
of  Commodore  Sloat,. 

I  left  Los  Angeles  early  in  September.  The  insurrection  brtfke 
out  there  in  the  same  month,  and  soon  spread  over  all  the  southern 
half  of  California,  It  extended  to  near  Monterey.  It  delayed 
Commodore  Stockton's  return  to  the  sea,  and  deferred  my  own  ap 
pointment  as  governor.  Instead  of  being  occupied  in  arrange 
ments  to  be  at  San  Francisco,  on  the  25th  of  October,  to  be  placed 
"as  governor  over  California,"  I  was  engaged,  with  little  other 
means  than  personal  influence,  in  raising  men  from  the  American 
settlements,  orf  the  Sacramento,  to  go  south  to  suppress  the  insur 
rection. 

With  a  small  body  of  men,  hastily  raised  for  the  emergency,  I 
embarked,  according  to  Commodore'  Stockton's  orders,  first,  in 
boats  to  descend  the  bay  of  San  Francisco,  and  then,  in  the  ship 
Sterling,  to  go  down  the  coast  to  Santa  Barbara.  We  had  left  our 
horses,  and  expected  to  obtain  remounts  when  wre  landed.  Two 
days  after  our  departure  from  San  Francisco,  we  fell  in  with  the 
merchant  ship  Vandalia,  from  which  I  learned,  and  truly,  that  no 
horses  could  be  had  below;  that,  to  keep  it  out  of  our  hands,  the 
Californians  had  driven  all  their  .stock  into  the  interior,  and  that 
San  Diego  was  the  only  point  left  in  possession  of  the  Americans. 
I  therefore  determined  to  return  to  Monterey,  and  make  the  march 
overland.  I  did  so,  and  there  I  Teamed,  on  the  27th  of  October, 
that  I  had  been  appointed  lieutenant  colonel  in  the  army  of  the 
United  States.  It  was  now  the  month  of  December,  the  beginning 


11 

of  'winter,  and  the  cold  distressing  rains  had  commenced.  Every 
thing  had  to  be  done,  and  done  quickly,  and  with  inadequate  means. 
In  a  few  weeks  all  was  ready;  400  men  mounted;  three  pieces  of 
artillery  on  carriages;  beef  cattle  procured;  the  march  commenced. 
I  omit  its  details  to  mention  the  leading  events,  a  knowledge  of 
which  is  essential  to  my  defence.  We  made  a  secret  march  of  150 
miles  to  San  Louis  Obispo,  the  seat  of  a  district  commandant  ; 
took  it  by  surprise,  without  firing  a  gun;  captured  the  commandant, 
Don  Jesus  Pico,  the  head  of  the  insurrection  in  that  quarter,  with* 
thirty-five  others,  among  them  the  wounded  captain  who  had  com 
manded  at  La  Natividad.  Don  Jesus  was  put  before  a  court  martial 
for  breaking  his  parole,  sentenced  to  be  shot,  but  pardoned.  That 
pardon  had  its  influence  on  all  the  subsequent  events;  Don  Jesus 
was  the  cousin  of  Don  Andreas  Pico,  against  whom  I  was  going, 
and  was  married  to  a  lady  of  the  Cavillo  family;  many  hearts  were 
conquered  the  day  he  was  pardoned,  and  his  own  above  all.  Among 
the  papers  seized,  was  the  original  despatch  of  General  Flores, 
which  informed  us  of  the  action  of  San  Pasqual,  but  without  know 
ing  who  commanded  on  the  American  side.  Don  Jesus  Pico  attached 
himself  to  my  person,  and  remained  devoted  and  faithful  under  try 
ing  circumstances.  We  pursued  our  march,  passing  all  the  towns 
on  the  way  without  collision  with  the  people,  but  with  great  labor 
from  the  state  of  the  roads  and  rains.  On  Christmas  day,  1846, 
we  struggled  on  the  Santa  Barbara  mountain  in  a  tempest  of  chill 
ing  rains  and  winds,  in  which  a  hundred  horses  perished,  but  the 
men  stood  to  it,  and  I  mention  it  to  their  honor.  They  deserve 
that  mention,  for  they  are  not  paid  yet. 

We  passed  the  maritime  defile  of  the  Rincon,  or  Punto  Gorda, 
without  resistance,  flanked  by  a  small  vessel  which  Commodore 
Stockton  had  sent -to  us,  under  Lieutenant  Selden  of  the  navy.  A 
<corps  of  observation,  of  some  50  or  100  horsemen,  galloped  about 
us,  without .  doing  or  receiving  harm;  for  it  did  come  within  my 
policy  to  have  any  of  them  killed.  It  was  the  Camp  of  this  corps 
which  Captain  Hamlyn  passed,  to  give  me  Commodore  Stockton's 
orders,  which  he" found  in  the  u  camp  of  the  willows,"  as  said  in 
his  testimony.  The  defile  of  San  Fernando  was  also  passed,  a  corps 
which  occupied  it  falling  back  as  the  rifles  advanced.  We  entered 
the  plain  of  Couenga,  occupied  by  the  enemy  in  considerable  force, 
and  I  sent  a  summons  to  them  to  lay  down  their  arms,  or  fight  at 
once.  The  chiefs  desired  a  parley  with  me  in  person.  I  went  alone 
to  see  them,  (Don  Jesus  Pico  only  being  with  me.)  They  were  wil 
ling  to  capitulate  to  me;  the  terms  were  agreed  upon.  Commis 
sioners  were  sent  out  on  both  sides  to  put  it  into  form.  It  received 
the  sanction  of  the  governor  and  commander-in-chief,  Commodore 
Stockton,  and  was  reported  to  the  government  of  the  United  States. 
It'was  the  capitulation  of  Couenga.  It  put  an  end  to  the  war  and 
to  the  feelings  of  war.  It  tranquilized  the  country,  and. gave  safe 
ty  to  every  American  /rom  the  day  of  its  conclusion. 

My  march  from  Monterey  to  Los  Angeles,  which  we  entered  on 
the  14th  of  January,  was  a  subject  for  gratulation.  A  march  of 
400  miles  through  an  insurgent  country,  without  spilling  a  drop  of 
blood — conquering  by  clemency  and  justice — and  so  gaining  the 


hearts  of  all,  that,  until  troubles  came  on  from  a  new  source,  I 
could  have  gone  back,  alone  and  unarmed,  upon  the  trail  of  my 
march,  trusting  for  life  and  bread  to  those  alone  among  whom  I  had 
marched  as  conquerer,  and  whom  I  have  been  represented  as  plun 
dering  and  oppressing!  I  anticipate  the  orcler  of  time,  but  pre 
serve  the  connexion  of  events  by  copying  here  from  an  original 
private  letter  to  Senator  Benton,  written  at  Los  Angeles,  the  3d  of 
February,  1847,  received  by  him  in  May  at  St.  Louis,  and  sent  to 
'the  President  for  his  reading,  whose  endorsement  is  on  the  back,  in 
his  own  hand  writing,  stating  it  to  have  been  received  from  Mr. 
Christopher  Carson  on  the  8th  of  June. 

Had  it  not  been  for  the  treatment  I  have  received,  the  secret  pur 
pose  to  arrest,  the  accumulated  charges,  the  publications  against 
me,  and  other  circumstances  of  the  prosecution,  I  should /have  been 
willing  to  have  read  that  paper  to  the  court  as  my  sole  defence 
against  this  charge  of  mutiny;  as  things  are,  I  copy  from  it  merely 
some  passages,  which  illustrate  what  I  have  said  of  'the  effects  of 
that  march  from  Monterey,  and  tne  capitulation  of  Couenga. 

"  Knowing  well  the  views  of  the  cabinet,  and  satisfied  that  it  was 
a  great  national  measure  to  unite  California  to  us  as  a  sister  State, 
by  a  voluntary  expression  of  the  popular  will,  I  had  in  all  my 
marches  through  the  country,  and  in  all  my  intercourse  with  the 
people,  acted  invariably  in  strict  accordance  with  this  impression, 
to  which  I  was  naturally  further  led  by  my  own  feelings.  I  had 
kept  my  troops  under  steady  restraint  and  discipline,  and  never 
permitted  to  thtm  a  wanton  outrage,  or  any  avoidable  destruction 
of  property  or  life.  The  result  has  clearly  shown  the  wisdom  of 
the  course  I  have  pursued.  **  # 

Throughout  the  Californian  population,  there  is  only  one  feeling  of 
satisfaction  and  gratitude  to  myself.  The  men  of  the  country,  most 
forward  and  able  in  the  revolution  against  us,  now  put  themselves 
at  my  disposition,  and  say  to  me,  i  Viva  usted  seguro,  duerme  usted 
seguroj  (live  safe,  sleep  safe,)  {  we  ourselves  will  watch  over  the 
tranquility  of  the  country,  and  nothing  can  happen  which  shall  not 
be  known  to  you.'  The  unavailing  dissatisfaction  on  the  part  of 
(our)  own  people,  was  easily  repressed;  the  treaty  was  ratified." 
I  I  terminate  my  narrative  at  the  capitulation  of  Cowenga,  because 
at  that  point  I  got  into  communication  with  my  two  superiors,  be 
came  involved  in  their  difficulties, «and  the  events  began  for  which 
I  am  prosecuted. 

^tFrom  this  point  the  evidence  begins.  My  narrative,  intended  to 
be  brief  and  rapid,  was  necessary  to  the  understanding  of  my  posi 
tion  in  California,  and  brings  me  to  the  point  of  the  particular  o(- 
fences  charged  against  me. 

Mutiny  is  first  in  the  order  of  the  charges,  and  the  first  specifica 
tion  under  it  is,  for  disobeying  the  negative  order  of  General  Kep.r- 
ny,  in  relation  to  the  re-organization  of  the  California  battalion. 

Governor  Stockton  gave  me  an, order  to  re-organize  it;  General 
Kearny  sent  me  an  order  not  to  re-organize  it;  this  on  the  16th  of 
January,  in  the  night.  The  next  morning  I  informed  General 
Kearny,  by  letter,  that  I  thought  he  and  Governor  Stockton  ought 
to  adjust  the  question  of  rank  between  themselves;  and,  until  that 


13 

was  dpne,  I  should  have  to  obey  Commodore  Stockton,  as  thereto 
fore;  and  gave  some  statement  of  facts  and  reasons  for  my  justifi 
cation. 

This  letter  constitutes  the  alleged  act  of  mutiny;  the  ingredient 
of  a  corrupt  motive,  in  trying  to  trade  for  a  governorship,  has  been 
since  added;  and  now,  let  the  accuser  and  prosecuting  witness 
speak  for  himself. 

On  the  first  day  of  his  examination,  General  Kearny  testifies 
thus: 

uOn  the  day  subsequent,  viz.,  on  the  17th  of  January,  Lieuten-- 
ant  Colonel  Fremont  came  to  my  quarters,  and  in  conversation,  I 
asked  him  whether  he  had  received  my  communication  of  the  day 
previous;  he  acknowledged  the  receipt  of  it,  and  stated  that  he  had 
written  a  reply  .and  left  it  with  his  clerk  to  be  copied. 

^ About  this  time,  a  person  entered  the  room  with  a  paper  in  his 
hand,  which  Lieutenant  C«lonel  Fremont  took.,  overlooked,  and 
then  used  ,the  pen  upon  my  table  to  sign  it;  his  clerk  having  told 
him  that  the  signature  was  wranting  to  it.  He  then  handed  it  to 
me.  At  my  request,  Lieutenant  Colonel  Fremont  took  a  chair  by 
my  table  while  I  read  the  letter. 

"Having,  finished  the  reading  of  it,  I  told  him  I  was  an  older 
man  than  himself;  that  I  was  a  much  older  soldier  than  himself; 
that  I  had  a  greit  respect  and  regard  for  his  wife,  and  great  friend 
ship  for  his  father-in-law,  Colonel  Benton,  from  whom  I  had  re 
ceived  many  acts  of  kindness;  that  these  considerations  induced 
me  to  volunteer  advice  to  him;  and  the  advice  was,  that  he  should 
take  the  letter  back  and  destroy  it;  that  I  was  willing  to  forget  it. 
Lieutenant  Colonel  Fremont  declined  taking  it  back,  and  told  me 
that  Commodore  Stockton  would  support  him  in  the  position  taken 
in  that  letter.  I  told  him  that  Commodore  Stockton  could  not  sup 
port  him  in  disobeying  the  orders  of  his  senior  officer^  and  that  if 
Le  persisted  in  it  he  would  unquestionably  ruin  himself:  He  told 
me  that  Commodore  Stockton  was  about  to  organize  a  civil  govern 
ment,  and  intended  to  appoint  him  governor  of  the  territory.  I 
told  him  Commodore  Stockton  had  no  such  authority, that  authority 
having  been  conferred  on  me  by  the  President  of  the  United  States. 
He  askedme  whether  Iwould  appoint  him  governor!  I  told  him  that  I 
expected  shortly  to  leave  California  for  Missouri;  that  I  had,  pre 
viously  to  leaving  Santa  Fe,  asked  permission  to  do  so,  and  was  in 
hopes  of  receiving  it;  that,  as  soon  as  the  country  should  be  qui 
eted,  I  should,  most  probably,  orgatiiz-e  a  civil  government,  and 
that  I  at  that  time  knew  of  no  objection  to  appointing  him  as  the 
governor.  He  then  stated  to  me  that  he  \vould  see  Commodore 
^tockton,  and  that  unless  he  appointed  him  governor  at  once,  he 
would  not  obey  his  orders-,  and  he  left  me." 

This  is  the  evidence  on  which  the  prosecution  rests  the  convic 
tion,  both  for  the  fact,  and  its  imputed  base  motive;  and  at  this 
point  the  defence  begins,  and  will  be  directed  at  once  to  both  mo 
tive  and  fact,  with  the  belief  of  showing  each  to  be  untrue. 

First,  as  to  the  probability  of  this  testimony  in  all  that  imputes 
the  dishonorable  conduct  to  me,  which  is  presented  as  the  motive  of 
the  meeting.  ^ 


14 

I  hold  it  to  be  improbable  on  its  face,  and  self-evidently  unwor 
thy  of  credit.  It  represents  me  as  cooling  to  General  Kearny's 
quarters  without  invitation,  signing  a  letter  in  his  presence  which 
I  had  directed  to  be  brought  after  me,  giving  it  to  him  to  read, 
and  refusing  to  take  it  back  and  accept  his  pardon  and  oblivion  for 
having  written  it.  The  writing  of .  the  letter  was  avowed  at  the 
outset  of  tiie  trial,  the  question  now  is  upon  what  passed  at  the 
time  of  its  delivery.  The  letter  contained  reasons  which  placed 
my  refusal  to  obey  his  order  on  high  grounds  of  fact  and  law;  the 
testimony  presents  me  as  descending  at  once  from  all  those  high 
reasons  to  the  low  and  base  proposal  of  virtually  selling  myself  to 
the  best  bidder,  himself  or  Commodore  Stockton,  for  a  governor 
ship.  According  to  the  testimony,  the  proposal  was  abrupt. 

uHe  asked  me  whether  I  would  appoint  him  gpvernor  ?"  and  this 
sudden  offer  to  sell  myself,  in  a  case  in  wrhich  the  purchaser  would 
be  about  as  censurable  as  the  seller,  far.from  exciting  indignation, 
seems  to  have  been  courteously  entertained;  and  far  from, being  in 
stantly  rejected,  seemed  to  be  accepted,  provided  a  little  time  was 
given  for  payment.  u  I  (General  K.)  then  told  him  that  I  expected 
shortly  to  leave  California  for  Missouri,  &c.,  &c.,and  that  I,  at  that 
time,  knew  of  no  objections  to  appointing  him  as  governor."  Thus, 
he  had  no  objection  to  the  transaction — only  wanted  a  little  time 
forperformance.  I,  on  the  contrary,  was  for  prompt  work;  for  the 
testimony  immediately  says:  "  He  then  stated  to  me  that  he  would 
see  Commodore  Stockton,  and  unless  he  appointed  him  governor  at 
once,  he  would  not  obey  his  orders;  and  he  left  me." 

This  is  the  spirit  of  trade,  with  its  very  language  and  action,  with 
the  clear  implication  that  I  immediately  went  to  Commodore  Stock 
ton,  and  not  coming  back,  had  received  the  appointment  at  once. 
Now,  all  this  is  too  cool  and  quick. 

*  It  is  improbable  on  its  face,  especially  coupled  with  the  fact 
that  I  left  the  letter  in  his  hands,  after  his  warning  of  unquestion 
able  ruin,  wrhich  now  constitutes  the  alleged  act  of  mutiny,  and  so 
put  myself  completely  in  his  power,  both  for  the  fact  and  the  al 
leged  motive.  'The  testimony  is  improbable. 

Secondly.  I  hold  it  to  be  invalidated  on  the  cross-examination. 

This  is  the  next  point  of  view  in  which  I  propose  to  examine  this 
part  of  the  testimony.  After  his  examination  came  his  cross-exam 
ination;  and  by  means -of  that  probe  and  sharp  searcher  after  truth, 
came  out  many  circumstancss  to  invalidate  the  first  swearing. 
Thus,  the  testimony  opens  with  saying:  "Lieutenant  Colonel  Fre 
mont  came  to  my  quarters,"  &c.,  the  inference  being,  that  I  came 
of  my  own  head;  and,  from  the  sudden  manner  in  which  I  opened 
the  subject,  the  further  inference  being,  that  I  came  for  the  gov- 
ernorship;  and  third  inference  being,  from  my  sudden  exit  and 
eagerness  to  see  Commodore  Stockton,  that  my  whole  business  was 
to  see  from  which  I  could  get  the  governship  the  soonest.  Now, 
if  I  did  not  come  of  my  own  head — if  General  K.  himself  actually 
sent  for  me,  and  desired  to  see  me  on  business — then  all  these  in 
ferences,  so  injurious  to  me,  fall  t'o  the  ground;  and  the  very  first 
words  spoken  by  the  witness,  though  literally  true,  become  jmtriie 


testimony,  and  impart  a  character  to  the  interview  which  the  truth 
requires  to  be  reversed.     Now  let  us  see  how  the  fact  is. 

On  the  eighth  day  of  the  trial,  this  question  was  put  to  General 
Kearny:  "Did  he  (Lieutenant  Colonel  Fremont)  come  of  his  own 
head,  (as  your  statement  implies,)  or  did  you  invite  him]" 

The  answer  to  that  question  was  this:  "  I  have  no  recollection 
of  having  invited  him  to  come."  On  hearing  this  answer,  a  small 
slip  of  paper  with  a  few  words  written  upon  it  was  exhibited  to 
the  witness,  and  this  question  addressed  to  him:  "  Is  this  paper  an 
original  T'  The  word  original  was  used  on  purpose  to  remind  the 
witness  of  what  had  occurred  on  the  first  day  of  the  trial,  and  to 
show  the  court  that  the  implication  then  gratuitously  raised  against 
me  as  a  person  who  would  destroy  originals,  was  about  to  re 
ceive  a  retributive  rebuke.  To  this  question  and  slip  of  paper,  the 
witness  answered:  u  That  is  my  writing,  and  that  is  my  note." 
The  note  was  then  read,  and  was  in  these  words: 

"JANUARY    17. 

11  DEAR  C/XLONEL:  I  wish  to  see  you  on  business. 

"S.  W.  KEARNY, 

"Brigadier  General." 

This  settled  the  question  of  the  coming,  and  not  only  showed 
that  it  was  upon  General  Kearny's  invitation  that  I  came  to  his 
quarters  on  that  day,  but  that  it  was  an  invitation  in  writing,  and 
to  a  business  interview  that  I  was  invited,  and  consequently  that  it 
was  his  seeking  and  not  mine  that  brought  us  together,  and  his 
business,  not  mine,  that  was  the  object  of  the  interview.  The  pro 
duction  of  this  little  original  worked  this  great  change  in  the  char 
acter  and  effect  of  the  evidence;  it  reversed  the  character  of  the 
coming,  and  destroyed  all  the  implications  arising  from  >a  volunta 
ry  coming  of  my  own  head,  and  for  a  purpose  of  my  own. 

But  suppose  this  little  original  had  been  actually  lost  or  destroy 
ed,  then  the  first  answer  of  General  Kearny,  that  he  had  no  recol 
lection  of  having  invited  me  to  come,  would  have  stood  with  the 
effect  of  an  affirmation  that  he  had  not  invited  me,  and  would  have 
left  in  full  force  all  the  injurious  implications  resulting  from  a 
gratuitous  visit  on  such  an  occasion,  and  with  such  a  conversation 
sworn  against  me. 

As  I  would  have  suffered  from  implications  in  the  first  state  of 
his  evidence,  I  claim  the  benefit  of  them  in  its  corrected  form;  and, 
further,  I  present  it  as  an  instance  of  the  infirmity  of  his  memory^ 

The  want  of  recollection  in  the  witness  in  this  important  partic 
ular,  I  am  instructed  by  counsel  to  say,  goes  to  the  invalidation  of  his 
testimony  with  respect  to  the  whole  interview.  The  circumstance  was 
an  important  one.  It  was  a  key  to  the  character  of  the  inverview: 
it  decided  the  character  of  the  interview  as  being  at  his  instance  or 
mine.  It  decided -it  to  be  a  business  interview,  and  that  business 
his,  and  not  mine.  It  precludes  the  idea  of  my  coming  to  him  for 
any  purpose  whatever;  it  fixes  the  fact  that  he  sent  to  me  for  a 
purpose,  and  that  not  a  common  one,  as  he  invited  me  to  an  inter 
view;  which  was  a  private  one;  at  his  own  quarters,  General  Kear- 


16 

ny  was  then  in  the  crisis  of  his  difficulties  with  Governor  Stock 
ton;  he  was  making  a  last  effort  to  get  me  to  join  him. 

The  next  circumstance  of  invalidation  which  I  mention,  arising 
from  his  own  testimony,  is  in  this  statement:  "  He  told  me  that  Com 
modore  Stockton  was  about  to  organize  a  civil  government,  and  in 
tended  to  appoint  him  governor; of  the  territory."  Now,  it  ap 
pears  by  his-  own  letter  to  Commodore  ^tockton  of  the  16th  of 
January,  that  he  knew  that  Governor  Stockton  was  then  engaged 
in  appointing  civil  officers  for  the  territory;  that,  as  to  intending 
to  appoint  me,  I  could  not  have  said  so,  because  I  had  been  virtu 
ally  appointed  since  September  of  1846,  and  actually  commissioned 
the  day  before;  and  finally,  that  Governor  Stockton  had  made 
known  to  General  Kearny  at  San  t)iego,  in  December,  that  he  in 
tended  to  appoint  me,  and  had  so  informed  the  government  at 
Washington.  (Ninth  day's  testimony.) 

The  next  circumstance,  to  invalidate  the  witness  upon- his  own 
swearing,  is,  what  he  says  he  stated  in  reply  to  the  request  to  be 
appointed  governor,  namely,  u  that  he  (General  Kearny)  at  that 
time  knew  of  no  objection  to  appointing  him  governor,  when  he 
left  the  country,"  &c.,  &c.  Time  is  the  material  point  in  this 
statement,  and  this  point  the  witness  has  fortunately  made  clear, 
both  by  collocation  and  cross-examination.  It  is  placed  near  the 
end  of  the  interview,  and  after  the  act  of  meeting,  with  all  its  ag 
gravations,  had-  been  consummated  in  his  presence;  and  the  cross- 
examination  shews  it  to  be  in  the  right  place.  This  cross-exami 
nation  took  place  on  the.  ninth  day  of  the  trial,  and  shews  thatrit 
was  after  the  supposed  crime,  for  which  I  am  now  prosecuted,  was 
consummated  in  his  presence,  that  he  was  able  to  see  no  objection 
to  appointing  me  governor  of  California. 

From  this  it  results  that  my  conduct  that  day  did  not  appear  to 
be  mutiny,  or,  that  mutiny, was  no  objection  to  his  appointing  me 
governor  of  California.  In  either  event,  I  present  the  circumstance 
as  invalidating  his  testimony,  as  it  is  impossible  to  reconcile  the 
opposite  opinions  of  my  conduct  which  the  declaration  of  that  day, 
and  the  prosecution  of  this  day  present. 

The  next  invalidating  circumstance  which  I  draw  from  the  cross- 
examination,  is,  in  the  difference  which  it  exhibits  to  the  first  day's 
testimony 'in  relation  to  this  alleged  application  for  the  governor 
ship,  and  the  answer  to  it.  The  first  day's  testimony  professes  to 
give  the  interview  full  and  complete,  and  in  the  exact  words  of 
each  speaker;  the  cross-examination  on  the  10th  day  makes  mate 
rial  variations.  The  first  day's  testimony  says:  u  He  asked  me 
whether  I  would  appoint  him  governor  ?"  That  is  a  single  ques 
tion  as  to  the  fact.  The  cross-examination  adds  another,  as  to 
time.,  by  adding,  "  and  when  ?" — and  that  led  to  a  corresponding 
difference  in  the  answer,  by  substituting  "  a  month  or  six  weeks," 
for  "  shortly."  The  cross-examination  of  the  same  day,  and  of 
the  9th  also,  brought  the  fact  of  two  material  omissions  in  that  re 
port  of  the  conversation  of  the  17th.  One  related  to  the  fact  of 
Lieutenant  Colonel  Fremont's  urging  him  (General  Kearny)  to 
have  a  personal  interview  with  Governor  Stockton,  and  expressing 
the  belief  that  all  difficulties  between  them  could  be  settled  in  such 


17 

an  interview;  the  other,  in  bringing  out  the  fact  that  I  appeared  to 
be  greatly  distressed  at  the  differences  between  the  two  superior 
officers.  Neither  of  these  important  facts  are  mentioned  in  the  di 
rect  testimony,  purporting  to  b'e  verbally  exact,  and  precisely  full, 
neither  more  nor  less;  but,  not  only  are  these  points  omitted,  but. 
as  told,  there  is  no  part  of  the  conversation  to  which  they  could  be 
applicable — no  place  where  they  would  fit  in;  from  which  the  con 
clusion  is  inevitable,  that  some  whole  topics,  and  of  a  very  differ 
ent  kind  from  those  related,  were  forgotten  in  that  report  of  a  con 
versation. 

To  be  distressed  at  the  state  of  things  between  the  two  superi 
ors,  was  a  different  thing  from  making  dissensions  between  them; 
to  endeavor  to  get  them  together  for  the  purpose  of  reconciliation, 
was  very  different  from  committing  mutiny  against  one  of  them. 
Yet  these  circumstances,  so  important  to  the  fair  and  just  under 
standing  of  my  conduct  and  feelings,  are  wholly  omitted  in  the 
direct  testimony,  and  only  imperfectly  got  out  in  the  cross-exami 
nation,  without  the  topics  to  which  they  belong,  and  without  sho"w- 
ing  a  place  in  the  reported  conversation  to  which  they  could  be 
applicable,  or  made  to  fit;  thereby  implying  greater  omissions  than 
have  been  discovered.  As  if  to  deprive  me  of  the  merit  which  these 
disclosures  implied,  the 'witness  added,  "Lieutenant  Colonel  Fre 
mont  might  have  effected  an  interview  between  Commodore  Stock 
ton  and  myself;  perhaps  there  were,  but  few  others  at  Los  Angeles 
who  could  have  done  it." 

I  certainly  believed  I  could  have  effected  the  interview.  Gov 
ernor  Stockton  had  no  objection  to  it,  but  General  Kearney's  sud 
den  departure  the  next  morning,  without  notice  to  me,  frustrated 
any  such  attempt  at  reconciliation. — (Tenth  day's  testimony,  near 
the  close.) 

The  next  invalidating  circumstance,  drawn  from  the  cross-exami*- 
nation  in  relation  to  the  same  point,  is,  in  not  suppressing,  or  en 
deavoring  to  suppress,  the  alleged  mutiny  at  the  time  it  is  charged 
to  have  been  committed. 

The  eighth  article  of  war,  copied  from  the  British  mutiny  act,  is 
imperative  that,  u  any  officer,  non-commissioned  officer,  or  soldier, 
who,  being  present  at  any  mutiny  or  sedition,  does  not  use  his  ut 
most  endeavor  to  suppress  the  same,  or,  coming  to  the  knowledge 
of  any  intended  mutiny,  does  not,  without  delay,  give  information 
thereof  to  his  commanding  officer,  shall  be  punished,  by  the  sen 
tence  of  a  general  court  martial,  with  death)  or  otherwise,  accord 
ing  to  the  nature  of  his  offence.5'  As  a  further  test  to  ascertain 
General  Kearny's  opinion  of  my  conduct  on  that  day,  the  follow 
ing  question  was  put  to  him:  "  Did  you  do  your  utmost  to  suppress 
the  mutiny  of  which  Lieutenant  Colonel  Fremont  is  charged  with 
being  guilty  in  your  quarters,  and  in  your  presence?"  The  judge 
advocate  reminded  the  witness  of  his  privilege  to  refuse  to  answer 
where  he  might  subject  himself  to  a  penalty,  but  the  witness  did 
not  claim  his  privilege,  and  answered:  "  Nothing  further  passed 
between  Lieutenant  Colonel  Fremont  and  myself  in  the  interview, 


18 

than  what  I   have  stated;"  (adding,  the  next  day,  "  to  the  best  of 
my  recollection.") 

This  is  clear  that  General  Kearny  did  nothing  to  suppress  the 
supposed  mutiny,  and  equally  clear  that  he  gives  no  reason  for  not 
doing  so.  He  was  in  his  own  quarters — in  the  house  where  his 
troops  were  quartered — and  he  testified  that  he  does  not  think  Com 
modore  Stockton  would  have  used  force.  The  inference  is,  that 
either  he  did  not  consider  it  mutiny  then,  or  that  he  had  some 
reason,  not  yet  told,  for  not  doing  his  duty.  The  former  is  the 
probable  one,  because  ^it  corresponds  with  the  cotemporary  decla 
ration  of  knowing  no  objection  to  appointing  me  governor,  and 
for  the  further  reason  that  it  appears,  from  his  own  evidence,  that 
he  gave  me  in  the  month  of  March,  several  orders  to  execute, 
implying  trust  and  confidence,  and  wholly  inconsistent  with  his 
duty,  under  the  eighth  article  of  war,  and  wholly  inconsistent  with 
military  usage,  if  he  then  believed  me  to  be  guilty  of  mutiny. 

For  these  reasons,  I  consider  his  testimony  further  invalidated 
upon  his  own  evidence,  drawn  out  upon  his  own  examination. 

The  next  circumstance  to  invalidate  the  testimony  of  this  wit 
ness,  arising  out  of  his  own  cross-examination,  is  what  relates  to 
the  bearer  of  my  letter  of  the  17th  of  January. 

In  his  direct  testimony,  General  Kearny  spoke  of  him  as  being- 
my  clerk.  As  I  kept  no  clerk,  and  knowing  that  Lieutenant  Tal- 
bott  had  copied  the  letter,  and  that  Mr.  Christopher  Carson  had 
brought  it  to  me,  (for  in  my  anxiety  at  the  state  of  things,  and 
hope  for  some  better  understanding,  I  went  in  such  haste  to  General 
Kearny's  quarters,  on  receiving  his  invitation,  as  to  leave  my 
letter  in  the  hands  of  a  copyist,  to  be  sent  after  me,)  I  undertook 
to  turn  his  mind  towards  the  right  person,  by  asking  who  the 
person  was  who  brought  that  letter.  To  that  question  he  answered: 
UI  do  not  know.  I  had  never  seen  him  before;  nor  do  I  know 
that  I  have  ever  seen  him  since."  I  then  put  the  question  direct: 
"  Was  not  that  person  Mr.  Christopher  Carson?"  To  which  the 
answer  was:  "  I  think  not."  This  answer  terminated  the  interro 
gatories  upon  that  point;  and,  according  to  the  evidence,  the  fact 
was  established  that  net  only  it  was  not  Mr.  Carson  who  brought 
the  letter,  but  that -it  was  some  strange  person  whom  General 
Kearny  had  never  seen  before  or  since.  The  defect  of  memory 
became  so  glaring  in  this  instance,  that  it  wa^  deemed  essential 
by  my  counsel  to  expose  it;  and  something,  like  a  Providence, 
enabled  me  to  do  so. 

Mr.  Carson,  the  best  witness,  had  returned  to  California;  Lieu 
tenant  Talbott,  who  copied  the  letter,  and  sent  him  with  it,  was 
the  next  best  witness;  and  he  had  been  ordered  to  Mexico  by  sea. 
In  passing  some  of  the  Florida  reefs,  the  vessel  he  was  in  was 
wrecked,  but  the  lives  of  the  passengers  were  saved;  and  Lieu 
tenant  Talbott,  with  his  command,  had  returned  to  Charleston. 
Hearing  all  this,  an  order  and  summons  was  despatched  for  him; 
he  came;  and,  being  examined  before  this  court,  he  testified  to  the 
facts  that  he  had  copied  the  leUer  at  my  request,  and  sent  it  after 


19 

• 

| 

me  by  Mr.  Carson  to  General  Kearny's  quarters.  Captain  Hensley 
gave  corroborating  testimony;  and  thus  the  fact  established  by 
General  Kearny's  testimony,  that  it  was  not  Mr.  Carson  who 
brought  the  letter,  nor  any  person  that  General  Kearny  had  ever 
seen  before  or  since,  was  entirely  disproved.  Certainly  the  fact  in 
itself,  as  to  who  brought  the  letter, .was  not  very  material;  but  it 
became  eminently  so  from  the  answers  of  the  witness.  For  General 
Kearny  not  to  know  Kit  Carson;  not  to  remember  him  when  he 
brought  the  letter  on  which  this  prosecution  is  based;  to  swear  that 
he  had  never  seen  the  man  before  or  since,  who  brought  that  letter, 
when  that  man  was  the  same  express  from  Commodore  Stockton 
and  myself  from  whom  he  got  the  despatches;  whom  he  turned 
back  from  the  confines  of  New  Mexico,  and  made  his  guide  to  Cal 
ifornia;  the  man  who  showed  him  the  way,  step  by  step,  in  that  long 
and  dreary  march;  who  was  with  him  in  the  fight  of  San  Pasqual; 
with  him  on  the  beseiged  and  desolate  hill  of  San  Bernardo;  who 
volunteered,  with  Lieutenant  Beale  and  the  Indians,  to  go  to  San 
Diego  for  relief,  and  whose  application  to  go  was  at  first  refused, 
"because  he  could  not  spare  him;"  who  was  afterwards  the  comman 
der  of  the  scouts  on  the  march  from  San  Diego  to  Los  Angeles  ; 
not  to  know  this  man  who  had  been  his,  guide  for  so  many  months, 
and  whom  but  few  see  once  without  remembering;  and  not  only  not 
to  know  him,  but  to  swear  that  he  had  never  seen  him  before  or 
since.  This,  indeed,  was  exhibiting  an  infirmity  of  memory  almost 
amounting  to  no  memory  at  all. 

In  that  point  of  view  I  present  it  to  the  court,  and  to  invalidate 
all  the  testimony  of  General  Kearny,  with  respect  to  my  words,  or 
his  words  in  that  alleged  conversation  of  the  17th  of  January. 
Acts  and  facts  are  more  easily  remembered  than  words;  persons 
and  things  seen  are  more  easily  remembered  than  expressions 
heard;  and  after  forgetting  his  own  act,  in  writing  to  me  to  come 
to  see  him  on  business;  after  forgetting  the  fact  of  seeing  the  fa 
mous  Kit  Carson  bring  the  letter  which  he  has  so  long  saved  for 
this  prosecution,  I  am  instructed,  by  counsel,  to  say  that  the  law 
discredits  him  as  a  witness. 

Thirdly.  Discredited  by  his  own  conduct. 

I  hold  that,  the  charge  is  discredited  by  General  Kearny's  own 
conduct  at  the  time,  in  not  reporting  it  to  Governor  Stockton,  or 
to  the  government  of  the  United  States.  In  neither  of  the  two  let 
ters  written  by  him  to  Governor  Stockton,  on  the  same  day  with 
my  alleged  offer  to  sel'l  the  California  battalion  to  him  for  a  gov 
ernorship,  accompanied  by  a  menace  of  revolt  against  Governor 
Stockton,  is  testified  to  have  taken  place,  is  the  remotest  hint  or 
allusion  to  any  such  transaction.  Now,  whatever  may  have  been 
General  Kearny's  opinion  of  his  own  rights,  and  of  the  refusal  of 
Governor  Stockton  to  recognize  his  claims,  considerations  of  pub 
lic  duty  ought  to  have  prompted  him,  before  going  away  and  leav 
ing  the  interests  of  the  country  entirely  in  the  hands  of  Governor 
Stockton,  with  a  known  intention  of  presently  committing  them  to 
me,  ought  to  have  induced  him  to  warn  that  officer  of  my  conduct, 
and  threat  of  sedition,  if  any  such  had  taken  place.  u 


20 

v 

On  the  other  hand,  if  considerations  of  public  duty  are  not  the 
motive  that  had  influence  with  him,  but,  instead,  his  private  resent 
ments,  these  also,  whether  against  Commodore  Stockton,  myself, 
or  both,  would  equally  have  prompted  him  to  the  disclosure,  had 
there  been  any  to  make;  for,  if  after  being  informed  of  such  insub 
ordination,  Governor  Stockton  had  still  persisted  in  his  intentions 
towards  me,  (continuing  my  command,  and  leaving  me  in  the  gov 
ernorship,)  the  witness  would  have  fastened  upon  both  a  corrupt 
intrigue  and  collusion;  or,  if  Governor  Stockton  had  acted  upon 
the  information,  as  would  have  been  proper  to  act,  and  as  he  pro 
bably  would  have  acted,  namely,  taken  away  my  command,  and 
possibly  seized  my  person,  then  that  "  UNQUESTIONABLE  RUIN,"  in 
timated  as  in  reserve  for  me,  would  have  been  sooner  accomplished. 

Had  that  which  is  now  charged  upon  me  actually  taken  place,  the 
suppression  of  the  fact,  at  that  time,  when  fresh  and  working  in  the 
mind  of  the  witness,  as  it  must  have  done,  cannot,  with  the  reasons 
and  inducements  which  existed  for  its  disclosure,  be  accounted  for 
on  any  known  principle  of  human.conduct. 

Besides  these  two  letters  to  Governor  Stockton  of  that  day,  both 
silent  on  this  charge,  the  witness  also  wrote  to  the  War  Department 
on  the  same  day,  and  reporting  both  Governor  Stockton  and  myself 
as  refusing  to  obey  him,  or  the  instructions  of  the  President; 
and  neither  in  that  letter  is  there  the  slightest  hint  or  allusion 
to  any  such  transaction  as  General  Kearny  has  now  testified  to. 

There  is  a  case  at  the  "Old  Bailey  where  a  person  was  convicted 
and  executed,  mainly  on  the  presumption  which  a  very  similar 
omission  to  this  raised.  It  was  the  case  of  Governor  Wall,  tried 
at  the  Old  Bailey,  in  1802,  on  a  charge  of  murder,  committed,  un 
der  color  of  official  duty,  in  the  punishment  of  a  soldier  at  Goree, 
off  the  coast  of  Africa,  twenty  years  before. 

The  soldier  was  punished  with  eight  hundred  lashes,  in  conse 
quence  of  which  he  died  two  days  after.  The  defence  setup,  was, 
that  a  part  of  the  troops  of  the  garrison  were  in  a  state  of  MUTINY, 
of  which  the  soldier  punished  was  the  ringleader;  and  that  the  pun 
ishment  was  inflicted  under  the  article  of  war  which  requires  an 
officer  present  at  a  mutiny  to  do  his  utmost  to  suppress  it. 

The  prosecution  proved  that  Governor  Wall  went  away  from  the 
place  on  the  day  following  the  alleged  acts  of  mutiny ,  and  with  him 
two  officers  ;  and  that,  arriving  in  England,  he  reported,  in  writing, 
to  the  government  concerning  the  affairs  of  the  garrison,  BUT  MADE 

NO  MENTION   OF   THE  ALLEGED   MUTINY. 

The  lord  chief  baron,  MacDonald,  dwelt  upon  that  omission,  and 
pointed  it  out  to  the  jury.  There  was  other  evidence  on  the 
point  of  MUTINY  or  no  mutiny;  but  it  was  nearly  balanced,  and 
this  omission  became  the  great  point  in  the  case.  The  governor 
was  convicted;  and  notwithstanding  the  most  powerful  efforts  to 
obtain  his  pardon,  the  king  (George  III.)  refused  to  grant  it  ;  and 
he  was  hung  at  Tyburn,  according  to  his  sentence,  and  his  body 
given  up  to  the  surgeons  to  be  dissected  and  anatomized. 

The  presumption  raised  in  the  present  instance  is  stronger  than 
in  the  one  I  have  quoted.  There  the  report  referred  only  to  the 


21 

affairs  of  the  garrison  generally;  here  it  relates  exclusively  to  the 
subject  now  in  issue.  There,  if  there  had  been  a  mutiny  there  was 
no  occasion  for  the  action  of  the  government;  for  the  mutiny,  such 
as  it  was,  had  been  suppressed  and  the  mutineers  punished;  here  the 
report  was  specially  for  the  action  of  the  government  on  the  case 
stated.  There,  the  omission  was  merely  a  matter  left  out,  not  affecting, 
in  any  way,  what  was  put  in;  here,  the  omission  is  of  the  material  part, 
and  without  which  not  only  an  imperfect  but  a  false  view  is  given 
to  the  whole.  There,  the  letter  was  written  six  weeks  after  the  oc 
currence,  and  at  a  great  distance  from  the  scene  of  it;  here,  it  was 
written  on  the  spot — the  same  day.  All  the  reasons  for  General 
Kearny  to  have  reported  my  alleged  mutiny,  and  the  base  motive 
for  it  in  the  imputed  attempted  bargaining  about  the  governship, 
are  infinitely  stronger  than  in  the  case  of  Governor  Wall.  The 
omission  was  a  heavy  circumstance  against  him  in  his  case;  it  must 
be  more  so  in  the  present  one;  and  authorizes  me  to  say  that  the 
testimony  of  the  witness  here  is  discredited  by  his.  own  conduct, 
at  the  time  of  these  imputed  offences. 

Fourthly. — I  now  take  a  more  decided  view  of  this  testimony 
in  relation  to  governorship,  and  say  that  besides  being  improbable 
on  its  face,  invalidated  on  the  cross-examination,  and  discredited 
by  his  own  conduct,  it  is  disproved  by  facts  and  witnesses.  The 
imputed  bargaining  for  the  governorship  is  the  point  of  the  mutiny 
and  the  base  and  sordid  cause  of  it.  Now,  if  there  was  no  bar 
gaining,  or  attempt  at  it,  for  the  governorship,  then  there  was 
no  mutiny;  and  the  whole  charge,  with  its  imputed  motive  and  in 
ferences,  falls  to  the  ground.  And,  now,  how  was  the  fact?  That 
as  early  as  August,  1846,  Governor  Stockton,  of  his  own  head,  se 
lected  me  for  his  successor  as  governor  and  commander-in-chief  in 
California.  That  he  informed  me  of  it  at  the  time  by  letter,  and 
also  informed  the  government  of  the  United  States  of  it,  and 
had  actually  fixed  the  25th  day  of  October,  1816,  for  his  own  return 
to  his  squadron,  and  fgr  my  installation  as  governor,  and  was  only 
delayed  in  that  intention  by  the  breaking  out  of  the  insurrection. 
That  he  informed  fteneral  Kearny  of  all  this  at  San  Diego,  by  giv 
ing  him  a  copy  of  his  official  dispatch  to  the  government  to  read; 
that,  arriving  at  Los  Angeles  in  January,  he  immediately  proceeded 
to  consummate  his  delayed  intention,  making  all  preparations  for 
his  own  departure  and  for  my  installation,  appointing  me  governor 
in  form,  appointing  a  secretary  of  my  choice,  appointing  the  coun 
cil,  immediately  filling  up  my  place  in  the  California  battalion  by 
promoting  Captain  Gillespie  to  be  major;  and  all  these  things  done 
and  completed  by  the  16th,  and  so  known  generally  at  the  time,  and 
actually  known  to  General  Kearny  himself,  as  appears  by  his  own 
letter,  of  that  date, 'to  "acting  Governor  Stockton,"  forbidding  the 
appointments;  and  also  by  his  cross-examination  before  this  court. 

The  following  are  passages  from  the  letter: 

"I  am  informed  that  you  are  now  engaged  in  organizing^  civil 
government,  and  appointing  officers  for  it  in  this  territory." 
you  have  not  such  authority,  (from  th^  President,)  I  then  demand 


22 

that  you  cease  all  further  proceedings  relating  to  the  formation  of 
a  civil  government  for  this  territory,  as  I  cannot  recognize  in  you 
any  right  in  assuming  to  perform  duties  confided  to  me  by  the 
President."— (Tenth  day.) 

The  cross-examination  of  the  same  day  fully  sustains  the  asser 
tion  that,  on  the  16th,  General  Kearny  knew  that  Governor  Stock 
ton  was  appointing  the  governor  and  secretary  for  California,  and 
his  letter  to  the  department,  of  the  same  date,  (16th,)  shows  that 
he  not  only  knew  it,  but  reported  it.  These  facts  disprove  the 
assertion  that,  on  the  17th,  I  asked  General  Kearny  for  the  gov 
ernorship  of  California;  disprove  \he  assertion  that  I  would  see 
Commodore  Stockton,  and,  unless  he  gave  it  at  once,  I  would  not 
obey  his  orders.  The  facts  disprove  it,  for  all  the  forms  of  be 
stowing  the  appointment  had  been  completed  the  day  before,  while 
the  appointment  itself  had  been  virtually  and  actually  made  for 
near  six  months  before. 

I  will  now  proceed  to  the  positive  testimony  of  an  unimpeached 
and  unimpeachable  witness,  to  disprove  the  testimony  of  General 
Kearny  in  relation  to  this  governorship. 

Colonel  Wm.  H.  Russell,  a  witness  introduced  on  the  thirty- 
v  sixth  day  of  the  trial,  testified  that  he  was  sent  by  Lieutenant 
Colonel  Fremont  from  the  plains  of  Couenga,  about  the  13th  of 
January,  to  Los  Angeles,  to  ascertain  who  was  in  chief  command, 
and  to  make  report  of  the  capitulation  of  Couenga.  I  leave  out, 
at  this  time,  all  notice  of  his  testimony,  except  what  relates  to  the 
governorship.  He  says^he  went  first  to  General  Kearny's  quarters; 
afterwards  to  Commodore  Stockton's;  returned,  by  invitation  of 
General  Kearny,  and  supped  and  slept  at  his  quarters.  On  this  re 
turn  the  chief  conversation  took  place,  and  now  the  very  words  of 
the  witness  shall  be  given.  Colonel  Russell  says:  "  In  that  con 
versation  he  (General  Kearny)  expressed  great  pleasure  at  Colonel 
Fremont's  being  in  the  country;  spoke  of  his  eminent  qualifications 
for  the  office  of  governor,  from  his  knowledge  of  the  Spanish  lan 
guage,  of  the  manners  of  the  people,  &c.;  anjj  of  his  (General 
Kearny's)  intention  to  have  appointed  him  governor,  if  the  instruc 
tions  he  brought  from  the  Secretary  of  War  had  been  recognized 
in  California."  "It  (the  conversation  about  the  governorship)  was 
a  subject  of  very  much  conversation,  protracted  to  a  late  hour  in 
the  night.  He  told  me  of  his  civil  appointments  in  New  Mexico, 
and  of  his  determination  to  have  appointed  Colonel  Fremont  gov 
ernor."  "He  said  that  so  soon  as  he  could  organize  a  civil  gov 
ernment,  it  was  his  intention  to  return  to  the  United  States,  and 
finding  so  suitable  a  person  as  Colonel  Fremont  in  the  country  to 
take  the  place  of  governor,  his  design  need  not  be  long  postponed. 
I  do  not  pretend  to  quote  his  exact  words." 

On  the  thirty-eighth  day  of  the  trial,  and  after  objections  to  cer 
tain  questions  to  Colonel  Russell  had  been  sustained  by  the  court, 
his  direct  examination  was  resumed,  and  he  testified,  (after  stating 
that  he  rode  out  the  next  morning  and  met  Lieut.  Colonel  Fremont, 
then  entering  Lbs  Angeles,  at  head  of  his  battalion,)  "I  informed  him 
(Lieutenant  Colonel  Fremont)  that  both  General  Kearny  and  Com- 


23 

modore  Stockton  were  anxious  to  confer  upon  him  the  office  of 
governor,  and  his  only  difficulty  would  be  in  the  choice  between 
them."  "  Commodore  Stockton  informed  me,  on  the  evening  of  the 
13th,  on  my  second  interview  with  him,  that  he  intended  to  confer 
the  office  of  governor  on  Lieutenant  Colonel  Fremont,  as  I  under 
stood,  immediately  on  his  arrival  at  Los  Angeles.  I  think  it  was 
a  matter  of  ordinary  publicity  throughout  the  city."  "  On  the 
morning,  as  I  suppose,  of  the  16th,  I  was  at  Commodore  Stock 
ton's  quarters,  and  he  informed  me  that  the  commission  for  Lieu 
tenant  Colonel  Fremont  as  governor,  and  my  own  as  secretary  [of 
state,  were  then  in  the  act  of  being  made  out  by  his  clerk,  and 
desired  me  to  ask  Lieutenant  Colonel  Fremont  to  be  at  his  quarters 
by  a  given  hour,vwhen  the  commissions  would  be  ready  for  delivery. 
I  made  this, communication  to  Lieutenant  Colonel  Fremont,  and  at 
the  appointed  time  returned  with  him  to  Commodore  Stockton's 
quarters,  when  he  (the  commodore)  accordingly  handed  the  com 
missions  to  each  of  us. 

"I  want  to  qualify  here,  as  I  am  told  there  is  some  discrepancy 
a.bout  dates.  I  presume  it  was  the  16th,  because  the  commissions 
bear  that  date,  and  for  the  further  reason  that  it  was  within  two  or 
three  days  of  the  arrival  of  Lieutenant  Colonel  Fremont  at  Los 
Angeles."  This  was  on  the  direct  examination. 

On  the  cross-examination,  on  the  fortieth  day  of  the  trial,  the 
witness  (Colonel  Russell)  in  reply  to  questions,  confirmed  all  that 
he  had  said,  and  added:  "That  in  all  the  conversations  I  had  with 
General  Kearny  on  that  evening,  (13th  January,)  I  understood  it  to 
be  his  wish  to  appoint  Lieutenant  Colonel  Fremont  as  governor,  if 
he  could  rightfully  do  so." 

On  his  re-introduction,  on  the  fifty-first  day  of  the  trial,  General 
Kearny  was  allowed  to  testify,  not  to  new  matter  introduced  by  the 
defence,  but  to  re-testify  to  the  points  on  which  he  had  before  been 
fully  examined,  and  in  so  swearing  contradicted  Colonel  Russell. 
I  asked  to  have  the  witnesses  confronted  before  the  court;  it  was 
refused.  I  asked  to  introduce  gentlemen  of  the  highest  standing  in 
the  United  States,  namely,  Mr.  Clay;,  and  Mr.  Crittenden,  Mr.  Jus 
tice  Catron,  of  the  Supreme  Court,  Hon.  Mr.  French,  of  the  House 
of  Representatives,  from  Kentucky, Hon.  Mr.  Jamieson,of  the  same 
House  of  Representatives,  from  Missouri,  to  sustain  the  general 
character  of  Colonel  Russell  for  truth  and  varacity;  it  was  refused 
by  the  court,  and  this  reason  assigned: 

"The  court  does  not  consider  contradictory  statements,  where 
fraud  is  not  imputed,  as  involving  a  right  in  a  party  to  sustain  the 
credit  of  a  witness  by  evidence  to  his  general  character. 

"  In  the  case  presented  here,  apparently  in  reference  to  the  exami 
nation  of  witnesses  by  the  court  itself,  which  could  not  be  sup 
posed  to  aim  at  discrediting  any  witness,  and  which  has  not 
impeached  any  witness,  the  court  cannot  now  admit  testimony, 
which  would  be  of  doubtful  admissibility,  to  rebut  any  examination 
by  a  party.  To  grant  the  request  of  the  accused,  might  imply  a 
doubt  on  the  part  of  the  court  as  to  the  integrity  and  general  char 
acter  of  the  witness,  which  the  court  does  not  entertain." 


24 

This  reason,  and  the  refusal  to  confront  General  Kearny  and 
Colonel  Russell  at  a  point  of  the  testimony  so  vital  to  my  honor, 
I  am  instructed  by  counsel  to  say,  could  only  have  been  given 
upon  the  admission  of  full  faith  and  credit  being  given  to  Colonel 
Russell  on  all  the  points  of  his  testimony  contradicted  by  General 
Kearny. 

Upon  this  supposition  nothing  further  would  need  to  be  said, in 
support  of  Colonel  Russell's  credit,  but  it  is  impossible  to  overlook 
the  glaring  fact,  on  the  part  of  the  prosecution,  of  the  non-produc 
tion  of  Captain  Turner,  at  the  time  of  the  re-introduction  of  Gen 
eral  Kearny.  All  the  testimony,  on  both  sides,  shows  the  general 
or  frequent  presence  of  Captain  Turner  at  the  day,  the  night,  the 
table  and  the  bed  conversations  on  the  13th  January,  at  General 
Kearny's  quarters,  which  were  also  the  quarters  of  Captain  Turner, 
and  he  frequently  referred  to  in  the  course  of  the  testimony.  If 
he  could  contradict  Colonel  Russell,  it  would  be  weighty;  if  he 
could  merely  say  that  he  heard  ho  such  thing,  it  would  be  some 
thing;  if  he  could  say  that  General  Kearny  told  him  differently  at 
the  time,  it  would  be  some  corroboration  of  what  he  now  says;  but, 
instead  of  this,  not  to  re-introcluc©  him  at  all,  when  he  is  the  wit 
ness  for  the  prosecution,  and  actually  present,  as  he  then  was 
in  the  ante-room  of  the  court,  is  to  admit  the  presumption  of  the 
law  that  his  non-production  under  such  circumstances,  is  a  circum 
stance  in  favor  of  Colonel  Russell's  testimony. 

The  attempt  to  weaken  Colonel  Russell's  testimony  at  this  point,, 
by  taking  exception  to  the  word  "INTENDED"  to  return  to  Missouri, 
ends  in  the  corroboration  of  it.  At  best,  it  is  only  the  difference 
between  expected  and  intended^  (and  Colonel  Russell,  in  his  direct 
testimony,  said  he  was  not  certain  of  the  exact  word,)  for  General 
Kearny,  in  his  direct  testimony,  testified  that  he  expected  SHORTLY 
to  leave  California  for  Missouri,  in  consequence  of  the  leave  he 
had  asked  before  he  left  Santa  Fe;  and  on  his  cross-examination 
he  substituted  "  a  month  or  six  weeks"  for  the  term  SHORTLY,. 
either  of  which  corresponds  with  Colonel  Russell's  statement,  and 
nullifies  the  argument  against  the  "  OPEN  QUESTION"-  on  which 
General  Kearny  so  much  relied. 

And  thus,  I  say  that  the  testimony  of  General  Kearny  is  dis 
proved  by  the  positive  testimony  of  an  unimpeached,  an  unim 
peachable  witness,  as  well  as  by  established  facts. 

Fifthly.  I  say  that  this  statement,  that  I  asked  General  Kearny 
for  the  governorship  is  disavowed  by  the  entire  tenor  of  my  life. 
I  have  neither  begged  nor  bargained  for  offices.  My  first  appoint 
ment,  as  second  lieutenant  of  topographical  engineers,  was  given 
me  by  President  Jackson,  Mr.  Poinsett  being  Secretary  at  War, 
when  I  was  'far  distant  on  the  Upper  Mississippi,  assisting  Mr. 
Nicollet  in  his  great  survey  of  that  region.  My  brevet  of  captain 
was  given  by  President  Tyler,  Mr.  Wilkins  being  Secretary  at  War, 
without  solicitation  from  myself  or  friends.  The  appointment  of 
lieutenant  colonel  came  to  me  in  California,  when  I  was  not  even 
thinking  of  it;  and,  I  am  assured  by  Senator  Benton,  that  it  was 
President  Folk's  own  act,  not  only  unasked  by  him,  but  that  he 


25 

refused  to  consent  that  any  friend  should  name  such  a  thing  to  the 
President. 

The  three  appointments  given  to  me  by  Commodore  Stockton, 
(those  of  major  of  the  California  battalion,  military  commandant 
of  California,  and  governor  and  commander-in-chief  in  California,) 
were  all  given  of  his  own  head,  without  solicitation  or  hint  from 
me.  Such  has  been  the  uniform  tenor  of  my  life  in  respect  to 
office,  and  General  Kearny  is  no  exception  to  it. 

The  uniform  conduct  of  my  life  disavows  the  application  which 
he  says  I  made  to  him;  and  I  claim  the  benefit  of  that  disavowal 
in  a  case  where  a  request  would  be  infamous,  which  I  never  made, 
when  it  might  have  been  done  with  honor. 

Sixthly.  Having  shown  that  this  testimony  of  General  Kearny 
is  improbable  on  its  face,  invalidated  on  his  own  cross-examina 
tion,  discredited  by  his  own  conduct,  disproved  by  positive  testi 
mony,  and  disavowed  by  the  tenor  of  my  life,  1  now  come  to  the 
last,  and  only  remaining  species  of  testimony— that  of  my  own 
declaration.  Happily,  I  have  no  new  declaration  to  make;  I 
have  only  to  show  the  statement  which  I  made  for  the  eye  of  pri 
vate  friendship,  in  the  mere  course  of  narrative,  and  as  a  circum 
stance  in  the  history  of  the  transaction,  near  twelve  months  ago, 
when  the  event  was  fresh,  no  question  about  it,  and  none  of  any 
kind  ever  expected.  In  that  private  letter  to  Senator  Benton,  al 
ready  referred  to,  written  at  Los  Angeles,  and  dated  the  3d  day  of 
February,  1847,  are  these  words: 

"  Both  offered  me  the  commission  and  post  of  governor;  Com 
modore  Stockton,  to  redeem  his  pledge  to  that  effect,  immediately, 
and  General  Kearny  offering  to  give  the  commission  in  four  or  six 
weeks." 

This  is  what  I  then  wrote  for  the  eye  of  private  friendship,  and 
what  I  now  produce  to  this  court  as  my  own  testimony  in  this  case. 
IT  IS  TRUE.  And  I  now  owe  it  to  myself,  to  my  friends,  and 
to  good  men,  whose  esteem  I  desire  to  possess,  to  declare,  and  to 
make  the  declaration  upon  responsibilities  infinitely  Higher  than 
those  of  military  honor  or  commission,  that  Brigadier  General 
Kearny,  in  all  that  he  has  testified  in  relation  to  this  governorship, 
has  borne  false  witness  against  me. 

I  dismiss  this  topic,  the  only  one  in  the  multiplied  charges 
agrfinst  me  which  concerns  my  honor,  with  the  reflection  which 
springs  of  itself  from  the  case  and  finds  a  response  in  every  gener 
ous  mind,  that  General  Kearny  himself  undertook  to  seduce  me 
with  this  governorship,  and  failing  to  do  so,  has  raised  against  me 
the  false  accusation  of  applying  to  him  for  it,  and  has  sworn  to  it. 

And  I  here  close  my  defence,  both  as  to  the  fact  and  the  motive, 
of  specification  first,  in  charge  first,  for  the  crime  of  mutiny. 

I  proceed  now  to  defend  the  same  act  under  a  different  charge; 
for  it  so  happens  in  this  trial  that  the  same  set  of  acts  are  placed 
under  different  charges,  some  under  t^o  charges,  namely,  mutiny 
and  disobedience  of  orders;  and  some  under  three,  the  same  act, 
in  some  instances,  being  carried  out  under  the  charge  of  conduct 


26 

prejudicial  to  good  order  and  discipline^  as  well  as  under  the  heads 
of  mutiny  and  disobedience  of  orders. 

I  refer  to  a  paper,  heretofore  filed,  for  the  opinion  which  my 
counsel  entertain  of  these  multiplied  charges  upon  the  same  set  of 
acts.  They  consider  them  as  so  many  different  trials  for  the  same 
thing,  and  wholly  unjustified  by  the  practice  which  admits 
less  degrees  of  the  same  offence  to  be  found,  according  to  the  proof 
produced  on  the  trial.  Here  the  charges  are  on  the  same  acts  for 
different  kinds  of  offences,  and  the  same  evidence  adduced  under 
each,  and  the  same  that  was  adduced  before  the  trial,  when  the 
charges  were  framed,  as  before  this  court,  when  they  are  tried. 
My  counsel  instruct  me  to  say  it  is  a  clear  case  of  two  trials  and 
three  trials  for  the  same  matter;  but  I  take  no  legal  objection 
to  it. 

To  save  the  labor  of  re-stating  questions,  and  of  re-producing 
proofs  as  many  times  as  the  same  specifications  are  repeated  under 
different  charges,  I  prefer  to  pursue  each  one,  when  I  begin  it, 
through  all  the  charges;  and  thus  finish  with  it  complete,  and  have 
all  my  trials  over  upon  it,  before  I  begin  with  another.  This 
method  will  be  convenient  to  me,  and  probably  no  disadvantage  to 
the  prosecution,  as  it  will  get  all  the  chances  of  conviction,  which 
the  multiplied  charges  require,  though,  perhaps,  not  in  the  order 
they  would  regularly  imply. 

'l  begin  with  my  letter  to  General  Kearny,  of  the  17th  of  Janu 
ary,  wrhich  he  produces  under  the  charge  of  disobedience  of  orders, 
as  well  as -under  that  of  mutiny,  and  as  evidence  to  prove  both,  and 
which  I  produce  as  containing  the  facts  and  the  law  which  dis 
prove  each.  That  letter  is  in  these  words: 

CIUDAD  DE  Los  ANGELES, 

January  17,  1847. 

SIR:  I  have  the  honor  to  be  in  receipt  of  your  favor  of  last  night, 
in  which  I  am  directed  to  suspend  the  execution  of  orders  which, 
in  my  capacity  as  military  commandant  of  this  territory,  I  had  re 
ceived  from  Commodore  Stockton,  governor  and  commander-in- 
chief  in  California. 

I  avail  myself  of  an  early  hour  this  morning  to  make  such  a  re 
ply  as  the  brief  time  allowed  for  reflection  will  enable  me. 

I  found  Commodore  Stockton,  in  possession  of  the  country,  exer 
cising  the  functions  of  military  commander  and  civil  governor,  as 
early  as  July  of  last  year;  and  shortly  thereafter  I  received  from 
him  the  commission  of^military  commandant,  the  duties  of  which  I 
immediately  entered  upon,  and  have  continued  to  exercise  to  the 
present  moment. 

I  found  also,  on  my  arrival  at  this  place,  some  three  or  four  days 
since,  Commodore  Stockton  still  exercising  the  functions  of  civil 
and  military  governor,  with  the  same  apparent  deference  to  his 
rank  on  the  part  of  all  officers  (including  yourself)  as  he  main-* 
tained  and  required  when  he  assumed  in  July  last. 

I  learned  also,  in  conversation  with  you,  that,  on  the  march  from 
San  Diego,  recently,  to  this  place,  you  entered  upon  and 


27 

discharged  duties  implying  an  acknowledgment,  on  your  part,  of 
supremacy  to  Commodore  Stockton. 

I  feel,  therefore,  with  great  deference  to  your  professional  and 
personal   character,  constrained  to  say  that,  until  you  and  Commo 
dore  Stockton  adjust  between  yourselves  the  question  of  rank,  where 
I  respectfully  think  the  difficulty  belongs,  I  shall  have  to  report   . 
and  receive  orders,  as  heretofore,  from  the  commodore. 

With    considerations   of    high   regard,  I   am,  sir,  your    obedient 
servant,  , 

J.  C.  FREMONT, 

Lieutenant  Colonel,  United  States  Army,  and 
Military  Commandant  of  the  Territory  of  California. 

To  Brigadier  General  S.  W.  KEARNY, 

United  States  Army. 

This  letter  was  signed  in  the  quarters  of  General  Kearny,  and  in 
his  presence,  and  delivered  to  him  by  myself.  He  read  it  in  my 
presence,  and  has  produced  it  here  as  evidence  against  me,  and,  in 
so  doing,  has  made  it  evidence  against  himself.  What  he  did  not 
then  deny,  he  admitted;  and  I  will  show,  from  his  own  testimony, 
that  that  is  the  case  with  the  whole  letter.  He  contradicted  no  part 
of  it;  therefore  he  admitted  every  part  of  it;  and  this  results  from  . 
his  own  swearing,  in  which  he  professes  to  give  an  exact  verbal 
account,  no  more,  no  less,  of  all  that  passed  at  that  interview,  of 
the  letter,  from  my  entrance,  at  the  beginning,  to  my  exit  at  the  end; 
and  not  one  word  of  my  letter  contradicted -in  the  whole  account. 
I  will  now  analyze  its  statements  of  law  and  fact,  so  far  as  they 
apply  to  this  charge  of  disobedience  of  orders,  and  show  it  to  be  a 
complete  refutation  of  the  charge  founded  upon  it.  The  letter  is 
the  text  of  my  defence,  and  the  developement  of  its  positions  will 
make  its  leading  argument.  I  am  advised  by  counsel  that  it  is  com 
plete  in  itself,  and,  such  as  it  was  written  that  morning,  needs  no 
aid  from  subsequent  reflection  or  legal  advice;  and  on  that  letter, 
as  it  is,  both  for  the  law  and  the  fact,  I  stand  all  the  multiplied 
trials  which  are  founded  upon  it. 

First.  It  fixes  the  time  of  sending  the  countermanding  order  to 
me — a  most  material  point  which  could  not  be  fixed  by  any  exami 
nation,  or  cross-examination  of  General  Kearny.  All  the  multiplied 
questions  put  to  him,  and  by  all  parties,  the  judge  advocate,  my 
self,  and  the  court,  left  the  time  of  the  day  uncertain,  and  led  to  a 
wrong  time,  as  being  at  some  period  of  the  day,  and  even  the  fore 
part  of  the  day,  of  the  16th  of  January.  (See  8th  and  9th  days  of 
the  testimony.)  My  letter  fixes  the  time;  it  opens  with  fixing  it. 
It  fixes  it  to  the  night.  The  first  line  acknowledges  the  receipt  of 
your  favor  (i.  e.  the  countermanding  order)  of  last  night.  No 
denial  was  made  of  having  sent  this  order  at  night;  and  thus  that 
period  was  confessed. 

Second.  It  fixes  the  character  in  which  I  myself  was  then  acting, 
and  a  knowledge  of  which  was  so  material  to  the  case,  and  so  dif 
ficult  to  be  obtained  from  the  prosecuting  witness.  It  shows  that 


28 

I  was  military  commandant  of  the  territory;  and  that  the  order  I 
was  required  to  cease  from  executing  was  an  order  in  relation  to 
the  battalion  under  my  command  as  military  commandant.  It  fixes 
the  fact  that  the  order  came  to  me  in  that  capacity;  for  so  my  let 
ter  asserts,  and  it  was  not  contradicted  by  General  Kearny  when 
read  by  him. 

Third.  It  fixes  the  character  of  Commodore  Stockton  in  giving 
me  the  order  to  reorganize  the  battalion;  for  it  names  him  as  giving 
the  order,  and  describes  him  as  governor  and  Commander-in-chief 
in  California. 

Fourth.  It  fixes  the  fact  that  on  my  arrival  at  Los  Angeles,  (14th 
January,)  Commodore  Stockton  was  exercising  the  functions  of  civil 
and  military  governor  with  apparent  deference  to  his  rank  by  Gen 
eral  Kearny,  for  that  is  asserted  in  the  letter,  and  was  not  contra 
dicted  by  him. 

Fifth.  It  also  fixes  the  fact  tfrat,  on  the  march  from  San  Diego 
to  Los  Angeles,  General  Kearny  discharged  duties  implying  the  su 
premacy  of  Commodore  Stockton;  for  that  is  asserted  to  have  been 
learnt  by  me,  from  conversations  with  General  Kearny  himself,  and 
was  not  denied  by  him. 

These  important  facts,  five  in  number,  are  fixed  and  established 
by  the  letter;  for  they  were  not  denied -when  the  letter  was  read. 
I  am  advised  by  counsel  that  the  law  takes  for  confessed  whatever 
is  said  to  a  man  in  his  presence,  and  not  contradicted,  at  the  time, 
by  him.  General  Kearny's  testimony,  professing  to  give  a  full  ac 
count  of  all  that  was  said,  on  both  sides,  during  the  whole  in 
terview -at  the  reception  of  the*  letter,  is  silent  upon  all  these 
points;  and  it  is  too  late  now  to  think  of  contradicting  what  was 
then,  by  all  the  rules  of  evidence,  irrevocably  admitted.  That 
letter  and  its  delivery  in  his  presence,  and  being  read  in  my 
presence,  besides  containing  the  facts  of  the  case,  and  the  law 
of  the  case,  becomes  also  the  evidence  of  the  case.  If  that 
order  had  not  been  written  or  sent  in  the  night,  that  was 
the  time  for  General  Kearny  to  have  said  so.  If  the  order  had 
not  been  intended  for  me,  in  my  capacity  of  military  com 
mandant  of  the  territory,  that  was  the  time  for  him  to  have  cor 
rected  my  error.  If  Commodore  Stockton  was  not  then  gover 
nor  and  commander-in-chief  in  California,  then  was  the  time  for 
him  to  have  told  me  so.  If  Commodore  Stockton  had  not  been  ex 
ercising  the  functions  of  military  commander  and  civil  governor^ 
from  the  month  of  July  preceding,  then  was  the  time  for  him  to 
have  contradicted  the  assertion  of  it  in  my  letter.  If  I  had  not 
found  the  commodore  exercising  the  same  functions  on  my  arrival 
at  Los  Angeles,  three  days  before,  with  apparent  deference  on  the 
part  of  all  officers,  General  Kearny  inclusive,  that  was  the  time  for 
him  to  have  denied  the  assertion,  or,  at  all  events,  to  have  pro 
tested  against  the  inclusion  of  himself  in  that  obedient  and  defer 
ential  class  of  officers.  If  I  had  not  learnt  in  conversation  with 
himself  that,  in  the  march  from  San  Diego,  and  also  there,  at  Los 
Angeles,  he  had  not  entered  upon  and  discharged  duties  implying^ 
07i  his  part,  an  acknowledgment  of  Commodore  Stockton's  supre- 


29 

macy,  then  was  the  time  for  him  to  have  told  me  that  I  labored 
under. a  total  mistake  in  my  misunderstanding  of  his  conversations. 

If  there  was  no  question  of  rank  then  (on  the  17th)  depending 
between  himself  and  Governor  Stockton,  he  ought  to  have  said  so. 
If  it  had  not  been  right  for  me  to  remain  as  I  was  until  they  ad 
justed  that  question,  then  was  the  time  for  him  to  say  so  to  me.  If 
the  difficulty  was  not  between  the  two  superiors  alone,  then  was 
the  time  for  him  to  have  cast  it  upon  me.  If  I  had  ever  reported 
to  him,  or  received  orders  from  him,  surely  it  was  the  time  to  tell 
me  so  when  he  was  reading  that  last  paragraph  of  my  letter,  in 
which  the  contrary  is  asserted  in  the  declaration,  that  I  should  have 
to  report  and  to  receive  orders  u  as  heretofore,"  from  Commodore 
Stockton.  If  all,  or  any  of  these  points  \vere  not  true,  then  was 
the  time,  and  there  was  the  place,  and  that  was  the  occasion,  to 
have  denied  them.  Denial,  omitted  then,  cannot  be  supplied  now. 
And  both  law,  reason,  and  justice,  require  my  uncontradicted  letter 
of  that  day  to  remain  as  established  truth  in  this  question  between 
General  Kearny  and  myself. 

Clear  and  strong  in  its  facts,  the  letter  is  equally  just  and  legal 
in  its  conclusions.  It  does  not  refuse  obedience  to  General  Kearny, 
but  defers  it  until  he  and  Commodore  Stockton  adjust  the  question 
of  rank  between  themselves;  it  respectfully  suggests  to  him  that 
the  settlement  of  the  difficulty  belongs  to  himself  and  Commodore 
Stockton;  and  concludes  with  stating  that  until  this  rank  is  so  ad 
justed,  I  would  have  to  report  and  receive  orders,  as  heretofore, 
from  Commodore  Stockton.  Now  all  this,  I  am  advised  by  counsel, 
is  both  law  and  reason;  and  to  prove  this  law,  and  this  reason,  is 
now  my  duty  before  this  court. 

I  proceed  to  do  it: 

First.  It  shows  that  there  was  a  question  of  rank  admitted  by 
General  Kearny  to  be  depending  between  himself  and  Commodore 
Stockton.  He  wished  to  settle  it  by  giving  me  a  contradictory 
order.  I  declined  the  responsibility,  and  I  think  rigntfully.  For, 
in  the  first  place,  it  is  not  for  the  subordinate  to  decide  between 
his  superiors.  He  has  no  legal  power  to  do  so;  no  legal  power  to 
require  submission  from  the  one  decided  against;  and  if  he  used 
physical  force,  it  might  indeed  be  a  case  of  mutiny,  and  that  in  its 
proper  sense  of  a  military  rebellion.  Besides,  decide  which  way 
he  might,  his  danger  would  be  the  same.  Having  no  right  or  power 
to  decide  between  them — my  duty  being  passive  and  not  active — 
the  only  safe  or  legal  course  open  to  me  was  to  remain  as  I  was, 
reporting  to,  and  receiving  orders  from,  Commodore  Stockton.  I 
considered  the  question  to  lie  between  the  two  superiors,  and  that 
seems  to  be  their  own  opinion  of  it,  from  their  correspondence  at 
the  time,  (16th  and  17th  of  January.)  The  concluding  words  of 
General  Kearny's  letter  to  Commodore  Stockton,  of  the  17th  of 
January  (eighth  day  of  the  trial)  are  express  to  that  point.  Those 
words  are  too  material  to  paraphrase  or  put  off  with  a  reference; 
they  are  thes^e: 

u  jLnd  as  I  am  prepared  to  carry  out  the  Presidents  instructions 
to  me,  which  you  oppose,  I  must,  for  the  purpose  of  preventing  a 


30 

collision  between  us,  and  possibly  to  prevent  a  civil  war  IN  CONSE 
QUENCE  of  it,  remain  SILENT  for  the  PRESENT,  leaving  with  YOU  the 
great  RESPONSIBILITY  of  doing  THAT  for  which  you  have  no  author 
ity  ,  and  PREVENTING  ME  from*  complying  with  the  Presidents  OR 
DERS. JJ 

This  extract  and  the  whole  cotemporaneous  correspondence  be 
tween  the  two  superior  officers,  beginning  at  San  Diego  when  I  was 
on  the  march  from  Monterey,  shows  that  the  contest  was  between 
them;  and  it  shows  also  the  serious  point  at  which  it  had  arrived. 
The  time  of  writing  the  letter,  from  which  this  extract  is  taken,  is 
now  the  material  point,  and  that  was  sufficiently  ascertained  on 
the  cross-examination  of  General  Kearny  on  the  eighth  day.  It 
was  ascertained  to  have  been  written  after  my  refusal  to  obey  Jiirn 
against  Commodore  Stockton  The  conclusion  is  inevitable.  That 
refusal  prevented  the  collision  and  the  civil  war  which  the  letter 
mentioned,  as  being  for  the  present  prevented.  I  prevented  it. 
My  reward  has  been  to  have  the  war  directed  against  myself,  and 
to  be  tried  for  capital  and  infamous  crimes,  with  base  and  sordid 
motives  attributed  to  me. 

The  question  now  is  disobedience  of  orders — the  order  not  to  re 
organize  the  California  battalion  being  the  specification. 

In  the  British  service,  from  whose  rules  and"  articles  of  war  our 
own  are  copied,  and  where  there  is  a  judge  advocate  general  to 
direct  court  martial  proceedings  with  ^uniformity,  the  character  or 
qualities  of  the  order,  disobedience  to  which  is  criminal,  are  already 
defined.  At  page  89  of  Hough,  (edition  of  1825,)  is  found  this  defi 
nition  of  such  an  order: 

"In  the  absolute  resistence  of,  or  refusal  of  obedience  to,  a  pre 
sent  and  urgent  command,  conveyed  either  orally  or  in  writing^ 
and  directed  to  be  obeyed  with  promptitude,  by  the  non-compli 
ance  with  which  some  immediate  act  necessary  to  be  done  might 
be  impeded  or  defeated,  as  high  an  offence  is  discoverable  as  can 
well  be  contemplated  by  the  military  mind;  inasmuch  as  the  prin 
ciple  which  it  holds  out,  would,  if  encouraged  or  not  suppressed  by 
some  heavy  penalty,  forbid  or  preclude  a  reliance  on  the  execution 
of  any  military  measure.  It  is  this  positive  disobedience,  there 
fore,  evincing  a  refractory  spirit  in  the  INFERIOR,  an  active  oppo 
sition  to  the  commands  of  a  SUPERIOR,  against  which  it  must  be 
supposed  the  severe  penalty  of  the  article  is  principally  directed." 

From  this  definition  of  the  kind  of  order  which  the  rules  and  ar 
ticles  of  war  contemplate,  it  is  clear  that  it  is  not  every  order,  and 
merely  because  it  is  an  order,  given  by  a  superior  to  an  inferior, 
that  entitles  itself  to  implicit  obedience.  On  the  contrary  it  must 
have  certain  indispensable  requisites  to  entitle  itself  to  that  obedi 
ence;  and  among  these  are:  1st,  legality;  2d,  necessary  for  the 
public  service;  3d,  urgent;  by  the  non-compliance  with  which 
some  immediate  act  necessary  to  be  done  is  defeated  or  impeded; 
and  that  the  disobedience  must  be  of  a  kind  to  evince  a  refractory 
spirit. 

I  have  to  answer  that  the  order  given  by  General  K.  possessed 
none  of  these  requisites,  and  that  disobedience  drew  after  it  no  in- 


31 

jury  to  the  public  service,  and  that  my  refusal  to   obey  it  was  not 
in  a  refractory  spirit. 

1.  It  was  not    a  legal    order,  and  this    for  reasons  which  I  shall 
fully  show  in  the  proper  place. 

2.  It  was  a  mere    experimental   order  of  contradiction,  to   try  a 
question  of  rank,  and  against  the  public  service,  as  the  state  of  the 
battalion  required  it  to    be  re-organized,  the   time   for  which  many 
of  the  men  and  officers  were  engaged    having  expired,  and  to  give 
it  a  major  in  the  place  of  myself,  made  governor. 

3.  So  far  from  being  for  the    public  service,  it  would  seem  from 
the  sentence  in  General  Kearny's  letter  to  Commodore  Stockton  of 
the  17th  of  January,  (already  quoted,)  in  relation  to  a  collision  be 
tween  them,  and  possibly  a  civil  war,  that  the  battalion  was  want 
ed  for  forcibly  asserting  his  right  to  the  governorship  against  Com 
modore  Stockton.     The  letter  can  have  no  other  meaning;  and  this 
interpretation  of  it  is,  moreover,  borne  out  by  his  letter  of  the  same 
date  to  the    department,  by  his  testimony  before  the  court,  and  by 
the  testimony  of  Lieutenant  Emory. 

4.  The  battalion  was  not,  and  never  had  been,  under   the  orders 
of  General  Kearny;  was   not  such  troops   as   his   instructions  con 
templated,  and    several  of  its    officers  were    from    the    navy,  over 
whom  he  could  have  no  control.  • 

5.  General  Kearny  was,  at  the  time  of  giving  the  order,  suspended 
from  the  command  of  the  forces  at  that  place  by  order  of  Governor 
Stockton. 

6.  If  not  suspended  at  the  time  he  wrote  and  sent  the  order,  then- 
he  was  himself  in  mutiny  against  his  own  commander,  and  endea 
voring  to  induce  me  "  to  join"  in  it,  and  thus  was  in  the  commis 
sion  of  the  double  offence    of  mutiny  himself,  and  endeavoring  to 
make  another  join  him  in  it. 

7.  General  Kearny  has  not  shown  for  what  purpose  he  gave  the 
order  against  re-organization,  but  it  appears  evident  it  was  for  an 
unlawful  purpose,  to  wit^  for  the  purpose  of  keeping  the  battalion 
together  in  his  own  hands  to  be  used  against  Gov.  Stockton.     On 
his  cross-examination  (eighth  day)  he  seems  to  have  known  nothing 
about  what  he  was  doing  in  giving  this  order,  on  which  I  am  now 
doubly  prosecuted.     To   the   question:  "Did   you   know  what  was 
the  nature  of  the  re-organization  commanded   by  Governor  Stock 
ton,  of  the  battalion  under   Lieutenant   Colonel  Fremont,  and  for 
bid  by  youT'  he  answered,  "I    do   not.     I   learned   that  Commo 
dore  Stockton  was  about  to  re-organize  that  battalion,  and  I  forbid 
it."     Thus,  a  battalion    raised,  officered,  commanded,  and    organ 
ized  by  Governor  Stockton,  and   being  a  part  of  his  forces  for  the 
conqust,  preservation,  and   government   of  California,   was  forbid 
to  be  re-organized  by  General   Kearny,  without  knowing  what  the 
actual  organization  was,  or   what    the    re-organization    would    be. 
He  heard  something  was  to  be  clone— he   knew   not   what — and  he 
forbid  it.     Surely,  he  should  tell  what  purpose  he  had  in  view. 

8.  It  was  an  order  that  I  could  not  obey  without  rebelling  against 
the  authority  by  which  the  battalion  was  raised  and  from  which  I 
held  my  commission  as  its  commander. 


32 

From  all  this  it  appears  that  the  order  hot  to  re-organize  the  bat 
talion  has  none  of  the  requisites  of  an  order  entitled  to  obedience; 
that  it  was  not  a  lawful  order;  that  it  was  not  intended  for  the 
public  service;  that  there  was  no  necessity  for  it;  that  no  injury  to 
the  public  service  accrued  from  non-obedience  to  it;  that  the  re 
fusal  to  obey  it,  so  far  from  being  in  a  refractory  spirit,  was  a  mere 
determination  to  remain  as  I  was,  and  as  I  had  been,  under  Com 
modore  Stockton's  command,  until  my  superiors  settled  their  own 
dispute.  And  I  am  now  advised  by  counsel  to  say  that  that  deci 
sion  was  legally  right. 

In  opposition  to  all  this,  General  Kearny  urges,  in  support  of  his 
right  to  command  me,  first,  his  rank  as  brigadier  general;  secondly^ 
his  instructions  to  take  command  of  the  troops  organized  in  Cali 
fornia;  thirdly,  that  I  had  put  myself  under  his  command  by  re- 
pprting  to  him  on  the  13th  of  January.  I  deny  all  three  of  his 
positions: 

1.  As  brigadier  general  he  had  no  right  to  give  me  any  order  in 
relation  to  Commodore  Stockton's   forces.     He    admits    this   with 
respect  to  the  sailors  and  marines;  also,  with  respect  to  that  part 
of  the  battalion  which  was  detached,  anil  under  the  command  of 
Captain  Gillespie;  it  was  equally  illegal  to  interfere  with  that  part 
of  the  commo(^>re's  forces  whidi  was  under  my  command. 

2.  His  instructions  to  take  command  of  the  troops  organized  in 
California  did  not  apply  to  those  raised  by  the  navy;  they  did  not 
apply  to   such  forces  as  I  commanded,  and  of  which  nothing    was 
known  at  Washington  when  the  instructions  were  given. 

3.  His  pretension  that  I  put  myself  under  his  command  by  re 
porting  to  him,  and  on  which  he  mainly  relies,  is  as  unfounded  as 
all  the  rest,  but  requires  a  more  detailed  and  precise  examination. 
He  lays  great  stress  upon  this  alleged  reporting,  and  shall  have  the 
full    benefit   of  his    own    testimony   in    support   of  his   pretension. 
In  his    direct    examination,  he  said:  "  About  the  14th  of  January, 
1847,  I  received  from  Lieutenant  Colonel  Fremont  a  communication 
dated    the  day  previous,  upon  the    march,    and    dated   January  13, 
1846,  (presumed  to  be  written   by  mistake  for   1847,)  and  which  I 
furnished,  together  with  the  charges,  to  the  adjutant  general." 

The  paper  was  read,  as  follows: 

ON  THE  MARCH,  January  13,  1846. 

DEAR  SIR:  I  have  the  honor  to  report  to  you  my  arrival  at  this 
place  with  400  mounted  riflemen  and  six  pieces  of  artillery,  in 
cluding  among  the  latter  two  pieces  lately  in  the  possession  of  the 
Californians.  Their  entire  force,  under  the  command  of  Don  An 
dres  Pico,  have  this  day  laid  down  their  arms  and  surrendered  to 
my  command. 

Very  respectfully,  your  obedient  servant, 

J.  C.  FREMONT, 
Lieutenant  Colonel  U.  S.  army,  and  military 

commandant  of  the  territory  of  California. 
Brigadier  General  S.  W.  KEARNY. 


33 

On  the  day  of  the  receipt  of  that  report,  (viz:  of  the  13th  Jan 
uary,)  Lieutenant  Colonel  Fremont,  at  the  head  of  a  battalion  of 
volunteers,  entered  the  city  of  Los  Angeles*.  On  the  16th  January 
an  order  was  sent  to  him,  relatipg  to  this  battalion,  by  my  direc 
tion,  and  signed  by  Lieutenant  Emory,  a  copy  of  which  I  have  fur 
nished,  and  which  I  can  identify  if  shown  to  me. 

This  is  a  copy  of  the  order  furnished  to  him  by  Lieutenant 
Emory. 

The  paper  was  read,  as  follows: 

HEAD-QUARTERS,  ARMY  UNITED  STATES, 

Ciudad  de  Los  Angeles,  January  16,  1847. 

Ey  direction  of  Brigadier  General  Kearny,  I  send  you  a  copy  of 
a  communication  to  him  from  the  Secretary  of  War,  dated  June  18, 
1846,  in  which  is  the  following:  "  These  troops,  and  such  as  may 
be  organized  in  'California,  will  be  under  your  command."  The 
general  directs  that  no  change  will  be  made  in  the  organization  of 
your  battalion  of  volunteers,  or  officers  appointed  in  it,  without  his 
sanction  or  approval  being  first  obtained. 
Very  respectfully, 

WM.  H.  EMORY, 

Lieutenant  and  Acting  Assistant  Adjutant  General. 
Lieutenant  Colonel  J.  C.  FREMONT, 

Mounted  riflemen,  commanding 

battalion  California  volunteers. 

On  his  cross-examination,  General  Kearny  thus  testifies  in  rela 
tion  to  that  battalion,  and  the  brief  note  which  he  treated  as  a  mili 
tary  report  for  duty:  "  The  California  battalion  was  under  my  com 
mand  from  the  time  of  Lieutenant  Colonel  Fremont7 s  reporting  to 
me  on  the  13th  of  January."  He,  therefore,  swears  to  the  fact  of 
my  reporting  to  him,  and  also  b<*ing  under  his  command;  and  this 
double  swearing  becomes  the  corner-stone  of  his  accusation.  Twice 
afterwards  he  swears  to  the  same  effect,  thus:  "  /  was  a  brigadier 
general  in  the  army,  and  the  accused  was  a  lieutenant  colonel  in  it.  ' 
I  was  in  command  of  the  battalion  at  the  time"  (to  wit:  16th  and 
17th.)  And  again:  u  I  made  no  attempt  to  get  the  command;  the 
•battalion  was  already  under  me." 

In  this  way,  and  by  dint  of  his  own  swearing,  he  gets  me,  as  he 
swears,  under  his  command,  and  thereby  acquires  the  right  to  give 
me  orders,  with  the  resulting  consequences  of  mutiny  and  disobe 
dience  if  I  did  not  obey  them;  and  all  these  rights  and  conse 
quences  flowing  from  the  word  report,  as  found  in  my  note  of  the 
13th  January  to  him. 

Now  let  us  see  with  how  much  truth  and  justice  this  is  done. 
From  the  testimony  in  chief,  at  the  opening  of  the  trial,  quoted 
above,  it  would  seem  that,  of  my  own  head,  on  the  13th  day  of 
January,  I  reported  myself  and  battalion,  in  -the  military  sense  of 
the  word,  to  General  Kearny  for  duty;  that  after  thus  reporting, 
and  without  any  thing  else  passing  upon  the  subject,  and  after  I 

3 


34 

had  voluntarily  put  myself  and  my  battalion  under  the  command  of 
General  Kearny,  I  did,  on  the  17th,  refuse  to  obey  the  order  of 
General  Kearny,  in  relation  to  said  battalion,  and  thus  became 
guilty  of  two  crimes — mutiny,  for^  which  I  might  have  been  law 
fully  killed  on  the  spot;  and  disobedience  of  orders,  for  which  I 
may  be  sentenced  to  be  shot  or  cashiered,  or  otherwise  punished 
"by  this  court. 

The  first  words  of  the  testimony  imply  voluntary  communication. 
The  words  are:  "  about  the  14th  of  January,  1847,  I  received  from 
Lieutenant  Colonel  Fremont  a  communication,  dated  the  day  pre 
vious,  upon  the  march,  &c.,  which  I  furnished,  together  with  the 
charges  to  the  adjutant  general."  This  testimony  presents  a  volun 
tary  act  on  my  part,  a  movement  of  my  own  head,  uninfluenced  by 
any  previous  act  of  General  Kearny;  and  so  stood  the  case  on  the 
direct  examination,  on  the  first  day  of  the  trial. 

On  the  seventh  day  the  cross-examination  reached  this  point, 
and  the  recorded  testimony  shows  as  follows: 

Question.  Did  you,  at  Los  Angeles,  from  the  10th  to  the  13th  of 
January  inclusive,  address  notes  to  Lieutenant  Colonel  Fremontr 
and  if  so,  how  many,  and  for  what  object? 

Answer.  Between  those  dates  I  addressed,  I  think,  three  commu 
nications  to  Lieutenant  Colonel  Fremont.  *  *  The  ob 
ject  of  my  communication  was  to  inform  Lieutenant  Colonel  Fre 
mont  of  our  being  in  possession  of  Los  Angeles,  and  having  a  strong 
force,  &c. 

Question.  Were  they  official  orders,  or  familiar  notes  of  infor 
mation  in  regard  to  impending  military  events,  and  desiring  infor 
mation  of  Lieutenant  Colonel  Fremont's  movements -in  return? 

Answer.  They  were  what  are  termed  semi-official,  written  in  a 
familiar  manner,  and  of  which  I  have  no  copies.  I  keep  a  copy  of 
all  my  official  communications. 

Question.  Did  either  of  those  fiotes  give  the  information  that 
Governor  Stockton  was  at  Angeles? 

Answer.  I  have  no  recollection  of  it. 

Question.  Did  either  of  those  -notes,  dated  at  6  o'clock  in  the 
evening  of  the  6th  of  January,  contain  these  words:  "  Dear  Fre 
mont:  I  am  here  in  possession  of  this  place,  with  sailors  and  ma 
rines.  We  met  and  defeated  the  whole  force  of  the  Californians 
the  8th  and  9th.  They  have  not  now  to  exceed  300  men  concen 
trated.  Avoid  charging  them,  and  come  to  me  at  this  place.  Ac 
knowledge  the  hour  of  receipt  of  this,  and  when  I  may  expect  you. 
Regards  to  Russell?" 

Answer.  I  cannot  answer,  but  I  think  it  highly  probable  it  did. 
As  I  stated  before,  I  kept  no  copies  of  those  semi-official  papers. 

Question.  Did  you  address  the  accompanying  letter  to  Lieutenant 
Colonel  Fremont,  and  at  the  time  of  its  'date? 

Answer.  That  is  my  writing  and  that  is  my  note. 

The  letter  was  read,  as  follows: 


35 

PlJEBLA    DE    LOS    ANGELES, 

Sunday^  January  10,  1847 — 4  p.  m. 

DEAR  F&EMONT:  We  are  in  possession  of  this  place,  with  a  force 
of  marines  and  sailors,  having  marched  into  it  this  morning.  Join 
us  as  soon  as  you  can,  or  l^t  me  know  if  you  want  us  to  march  to 
your  assistance.  Avoid  charging  the  enemy;  their  force  does  not 
exceed  four  hundred,  perhaps  not  more  than  three  hundred.  Please 
acknowledge  the  receipt  of  this,  and  despatch  the  bearer  at  once. 
Yours, 

S.  W.   KEARNY, 
Brigadier  General  U.  S.  army. 
Lieut.  Colonel  J.  C.  FREMONT, 
Mounted  rifles^  com.,  fyc. 

Question.  Did  you  also  address  this  one.  to  him,  and  at  the  time 
of  its  date  1 

The  witness,  having  examined  the  paper,  said:  That  is  my  writ 
ing,  and  that  is  my  note. 

It  was  read,  as  follows: 

ClUDAD    DE    LOS    ANGELES, 

,  January  13,  1847 — 12  o'c/oc/e,  noon. 

DEAR  FREMONT:  We  are  in  force  in  this  place — sailors  and  ma 
rines.  Join  us  as  soon  as  possible. 

r     We  are  ignorant  of  your  movements,  and   know  nothing  of  you 
further  than  your  armistice  of  yesterday. 
Yours, 

S.  W.  KEARNY, 

f  Brigadier  General. 

Lieutenant  Colonel  FREMONT. 

Question.  Did  you  also  address  .this  to  him,  and  at  the  time  it 
bears  date  1 

Answer.  That  is  my  writing  and  that  is  my  note. 

It  was  read,  as.  follows: 

PUEBLA  DE  LOS  ANGELES, 

,  January  12,  1847 — Tuesday  6,  p.  m. 

DEAR  FREMONT:  I  am  here  in  possession  of  this  plaee,  with  sai 
lors  and  marines.  We  met  and  defe'ated  the  whole  force  of  the 
Californians,  the  8th  and  9th.  They  have  not  now  to  exceed  300 
men  concentrated.  Avoid  charging  them,  and  come  to  me  at  this 
place. 

Acknowledge  the  hour  of  receipt  of  this,  and  when  I  may  expect 
you.     Regards  to  Russell. 
Yours, 

S.  W.  KEARNY, 

Brigadier  Geieral. 
Lieutenant  Colonel  FREMONT, 

•   Question.  Did  you  also  write  this  one  to  him,  and  were  the  first 


36 

two  of  the  five  words  (do  not    charge  the  enemy)  underscored  by 
you,  as  they  now  appear  ? 

Answer.  That  is  my  writing,  and  that  is  my  note,  and  though  1 
have  no  recollection  of  underscoring  these  words,  I  have  no  doubt 
but  I  did  so. 

The  note  was  read,  as  follows: 

ClUDAD    DE    LOS    ANGELES, 

t  January  13,  1847 — 2,  p.  m. 

DEAR  FREMONT:  We  have  been  here  since  the  10th.  I  have  plen 
ty  of  marines  and  sailors.  We  know  nothing  of  you,  except  your 
armistice  of  yesterday,  signed  by  yourself.  I  have  sent  several 
letters  to  you,  and  fear  they  have  been  intercepted,  as  I  have  re 
ceived  no  answer.  Come  here  at  once,  with  your  whole  force,  and 
join  us;  or  if  you  cannot,  let  me  know  it,  and  I  will  go  to  you. 
The  enemy  cannot  possibly  have  near  you  more  than  300,  most  pro- 
baby  not  more  than  150  men.  Acknowledge  the  hour  of  receiving 
this,  and  send  back  the  bearer  at  once,  and  write  but  little,  as  it 
may  get  into  the  hands  of  the  enemy,  instead  of  mine. 

We  defeated  the  enemy  on  the  8th  and  on  the  9th,  during  our 
march.  Since  then  they  have  been  much  scattered,  and  several,  no 
doubt,  gone  home. 

I  repeat,  we  are   ignorant  of  every  thing  relating  to  your  com 
mand,  except  what  we   conjecture   from  your  armistice,  signed   by 
yourself.     Success  to  you! 
Yours, 

S.  W.   KEARNY, 

Brigadier  General. 

Do  not  charge  the  enemy. 

/ 

Lieutenant  Colonel  J.  C.  FREMONT, 
Mounted  rifles,  Sec. 

This  is  what  is  s"hown  by  the  cross-examination!  The  note 
of  the  13th,  so  far  from  being  voluntary,  that  it  was  actually 
pulled  and  dragged  out  of  me  by  General  Kearny,  by  dint  of  re 
peated,  urgent,  solicitous,  and  affectionate  notes,  all  requiring 
information' of  my  position  and  movements,  and  all  concealing 
the  fact  that  Commodore  Stockton  was  with  him  at  Los  Angeles, 
and  his  commander-in-chief.  "  Dear  Fremont,"  four  times  re 
peated,  and  four  applications  for  informations  of  him' show  the 
character  of  the  notes  sent  and  the  object  of  sending  them;  that 
they  were  familiar  notes  of  information,  such  as  are  written  in  all 
services  and  between  officers  of  all  ranks,  and  which  are  used  for 
no  purpose  in  the  world  except  for  the  sake  of  the  information  they 
contain.  But,  while  the  notes  show  this,  the  cross-examination 
was-impotent  to  gain  the  same  knowledge,  either  of  their  number, 
object,  or  contents.  To  the  question,  how  many  of  these  notes? 
he  answer  three,  he  "thinks."  Not  being  in  the  habit  of  destroy 
ing  originals,  I  produce  him  four.  To  the  question,  with  wnat 
object?  he  replies  that  it  was  to  give  him  (myself)  information  of 


37 

his  (General  Kearny's)  being  in  possession  of  Los  Angeles,  &c., 
£c.  The  notes  being  read  show  that,  in  addition  to  that  informa 
tion  to  me,  they  desired  information  from  me  also:  To  the  inquiry 
whether  either  of  these  notes  gave  information  that  Governor 
Stockton  -was  at  Los  Angeles]  the  answer  is,  UI  have  no  recollec 
tion  of  it." 

The  notes  themselves  being  read,  each  one  shows  that  the  pre 
sence  of  Governor  Stockton  was  not  even  hinted,  fhe  same  four 
notes  tell  something  else  very  incompatible  with  the  testimony  of 
a  previous  day;  they  tell  Lieutenant  Colonel  Fremont  the  force 
gone  against  him  may  be  300  or  400  men.  In  the  previous  swear 
ing  are  these  words:  "And  a  small  party  under  Don  Andreas  Pico — 
which  party  I  have  never  understood  to  have  exceeded  fifty  or  sixty 
men — went  to  Couenga,  and  entered  into  capitulation  with  Lieu 
tenant  Colonel  Fremont." 

From  these  notes,  then,  the  great  fact  was  brought  out  that  the 
communication,  presented  as  a  voluntary  act,  was  extracted  from 
Lieutenant  Colonel  Fremont  by  General  Kearny  himself;  that,  in 
stead  of  being  a  military  reporting  for  duty,  it  was  a  reporting  for 
information  only;  that,  instead  of  .being  an  official  communication, 
it  was  a  familiar  private  note,  in  answer  to  familiar,  private,  and 
apparently,  most  affectionate  notes. 

Upon  their  face  they  contradict  the  swearing  of  General  Kearny, 
and  it  is  further  contradicted  by  facts  and  circumstances  drawn 
from  himself,  or  from  authentic  sources.  The  direct  testimony  at 
the  opening  of  the  trial,  says:  "  On  the  day  of  the  receipt  of  that 
letter,  &c.,  &cv,  Lieutenant  Colonel  Fremont,  at  the  head  of  a  bat 
talion  of  volunteers,  entered  the  city  of  Los  Angeles."  Now,  all 
the  testimony  agrees  (and  such  is  the  fact)  that,  on  my  entrance 
into  Los  Angeles  with  my  battalion,  I  went  direct  to  the  quarters 
assigned  it  by  Governor  Stockton  through  Colonel  Russell;  then  re 
ported  in  person  to  Governor  Stockton,  and  afterwards  called  on 
General  Kearny. 

That  note,  so  extracted  from  me,  and  so  perverted,  did  not  fetch 
itself  to  Los  Angeles.  Some  person  must  have  brought  it,  and  did; 
and  that  person  was  Colonel  W.  H.  Russell;  and  he  has  given  an 
account  of  his  mission,  and  of  his  conversation  with  General 
Kearny,  wholly  incompatible  with  the  present  imputed  intention  of 
that  note.  On  the  37th  day  of  that  trial,  that  witness  (Colonel 
Russell)  was  introduced,  and  the  second  question  put  to  him  (the 
first  being  only  to  show  his  rank'in  the  California  battalion)  was 
this:  "Were  you  sent  to  Los  Angeles,  from  the  plains  of  Couenga, 
by  Lieutenant  Colonel  Fremont?  If  so,  at  what  time,  and  for  what 
purpose?"  And  the  answer  was:  u  I  was  sent  by  Lieutenant  Col 
onel  Fremont  from  the  plains  of  Couenga,  about  the  13th  of  January, 
1847,  for  the  purpose  of  ascertaining  who  was  in  chief  command, 
and  to  make  report  of  the  capitulation  made  on  that  day  to 
whomsoever  I  should  find  in  the  chief  command  at  Los  Angeles." 
The  next  question:  "Will  you  state  how  you  executed  that  mis 
sion?"  Answer.  "I  went  to  the  quarters  of  General  Kearny  first, 
and  inquired  of  him  whether  his"  arrival  in  the  country  had  super- 


38 

seded  Commodore  Stockton,  who,  before,  had  been  recognized  as 
chief  commander.  From  General  Kearny  I  learned  that  Comm'o- 
dore  Stockton  was  still  in  chief  command,  and  by  him  I  was  di 
rected  to  make  my  report  to  the  commodore."  This  was  the 
testimony  of  Colonel  R.  on  that  point  on  his  examination  in  chief. 
On  the  cross-examination  (39th  day)  the  following  questions  were 
put  by  the  judge  advocate: 

"  Do  you  recollect  General  Kearny  told  you  expressly  that  he 
was  serving  under  Commodore  Stockton,  or  did  he  say  anything 
more  explicit  than,  as  was  said  by  you,  that  Commodore  Stockton 
was  in  chief  command,  and  you  would  carry  your  report  of  the 
capitulation  to  him'? 

Answer.  He  told  me  distinctly  that  he  was  serving  under  Com 
modore  Stockton,  and  had  been  doing  so  from  San  Diego. 

Question  by  judge  advocate.  Was  Captain  Turner  present  at  that 
interview? 

Answer.  I  am  not  positive,  but  believe  he  was." 

On  the  fortieth  day  of  the  trial,  the  court  took  up  the  cross-ex 
amination;  and,  on  this  point,  with  the  following  results: 

"Question.  When  you  were  sent  to  Los  Angeles,  to  ascertain  who 
was  in^  command,  had  you  any  orders  what  to  do  if  you  found  the 
chief  command  claimed  by  both  Commodore  Stockton  and  General 
Kearny. 

Answer:  My  instructions  from  Lieutenant  Colonel  Fremont  were 
to  proceed  to  Los  Angeles,  and  carefully  to  inquire  as  to  who  wras 
in  chief  command,  and  to  make  my  report  accordingly.  No  such 
contingency  was  contemplated,  I  think,  by  Lieutenant  Colonel  Fre 
mont,  when  he  dispatched  me  on  that  mission,  as  the  command  be 
ing  claimed  by  them  both. 

Question  by  a  member.  Why  did  you  first  report  to  General 
Kearny  rather  than  to  Commodore  Stockton? 

Answer.  I  bore  a  letter  to  General  Kearny  from  Lieutenant  Col 
onel  Fremont,  in  ackowledgment  of  one  received  by  Lieutenant 
Colonel  Fremont  from  General  Kearny,  and  for  the  further  reason 
that  we  were  totally  ignorant  of  "the  object  of  General  Kearny's 
being  in  the  country,  and  my  orders  from  Lieutenant  Colonel  Fre 
mont  were  that  I  should  ascertain  all  about  it. 

Question  by  the  court.  State  all  the  conversation  which  passed 
between  you  and  Lieutenant  Colonel  Fremont  on  the  subject  of 
choice  of  commanders,  after  you  returned  and  reported  to  him  the 
result  of  your  visit  to  Los  Angeles'? 

Answer.  I  met  Lieutenant  Colonel  Fremont  at  the  head  of  his 
battalion,  on  the  morning  of  the  14th  of  January,  (as  I  stated  in 
my  chief  examination,)  about  five  or  six  miles  from  Los  Angeles, 
and  told  him  I  had  had  much  conversation  with  both  General  Kearny 
and  Commodore  Stockton,  touching  their  respective  positions  in 
the  country.  That  I  was  satisfied,  from  what  had  occurred,  that 
General  Kearny  was  a  better  friend  of  his  than  Commodore  Stock 
ton;  but$  from  General  Kearny's  own  admissions,  I  regretted  to 
have  to  give  it  as  my  opinion  that*  we  should  have  to  look  to  -Com 
modore  Stockton  still  as  commander-in-chief.  That  I  found  Com- 


39 

modore  Stockton  exercising  the  functions  of  commander-in-chief, 
and  submitted  to  implicitly,  as  I  thought,  by  General  K^earny. 
This  was  the  substance  of  my  communication  to  Lieutenant  Colonel 
Fremont;  and  he,  I  think,  with  equal  reluctance,  at  the  time,  came 
to  the  same  conclusion." 

This  is  the  testimony  of  the  witness  who  bore  the  note  which  is 
represented  here,  (and  made  the  foundation  of  the  prosecution 
against  me,)  as  a  military  report,  to  put  myself  and  my  battalion 
under  the  orders  of  General  Kearny,  and  actually  so  placing  myself 
and  battalion  under  his  orders. 

From  all  the  testimony  of  Colonel  Russell  it  seems  clear  that 
General  Kearny  undertook  to  gain  me  over  to  his  side  by  flatteries, 
by  offering  the  governship  of  California,  and  by  exciting  resent 
ment  against  Commodore  Stockton*  and  failing  by  all  of  these 
means  to  accomplish  that  purpose,  he  tried  the  experiment  of  an 
order  upon  me,  with  the  menace  of  "unquestionable  ruin,"  which 
ruin,  it  would  seem,  he  has  been  laboring  ever  since  to  effect. 

That  this  construction  was  not  put  upon  my  note  at  the  time  it 
was  received,  seems  clear  from  official  cotemporaneous  acts  of  Gen 
eral  Kearny  himself.  Thus,  on  the  14th  day  of  January,  he  writes 
to  the  War  Department,  from  Los  Angeles,  that  "  this  morning 
Lieutenant  Colonel  Fremont,  of  the  regiment  of  mounted  riflemen, 
reached  here  with  400  volunteers,"  &c.,  &c.  No  word  of  reporting 
to  him,  6r  placing  myself  and  battalion  under  his  command.  Surely 
that  was  the  time  to  have  communicated  to  the  War  Department 
such  an  essential  piece  of  intelligence.  In  the  concluding  part  of 
the  same  letter  he  says:  "  On  their  arrival  (troops  from  New  York 
and  New  Mexico)  I  shall,  agreeably  to  the  instructions  of  the 
President  of  the  United  States,  have  the  management  of  affairs  in 
this  country,  and  will  endeavor  to  carry  out  his  views  in  relation  to 
it,"  words  which  necessarily  mean  that  he  did  not  consider  himself 
entitled  to  command  until  the  arrival  of  those  troops,  or  else  that 
he  intended  to  avail  himself  of  those  troops  to  obtain  command. 

The  letters  of  the  16th, and  17th  of  January,  from  General  Kearny 
to  Commodore  Stockton,  are  significant  at  this  point.  1.  They  are 
totally  silent,  on  the  subject  of  my  having  placed  myself  and  the 
battalion  under  his  command.  2.  They  show  the  whole  contest,  up 
to  the  17th,  to  be  between  the  two  superiors.  3.  The  letter  of  the 
17th  shows  a  shifting  of  the  grounds  of  his  claim  to  command  in 
California,  basing  it  on  his  victories  ©f  the  8th  and  9th,  and  the 
capitulation  of  the  enemy  to  me  on  the  13th.  The  words  of  the 
letter,  significant  of  this  change,  are:  ""As  in  consequence  of  the 
defeat  of  the  enemy  on  the  8th  and  9th  instant  by  the  troops  under 
my  command,  and  the  capitulation  entered  into  on  the  13th  instant, 
by  Lieutenant  Colonel  Fremont  with  the  leaders  of  the  Californians, 
in  which  the  people  under  arms  and  in  the  field  agree  to  disperse 
and  to  remain  quiet  and  peaceable,  the  country  may  now,  for  the 
first  time,  be  considered  as  conquered  and  taken  possession  of  by 
•us,  and  as  I  am  prepared  to  carry  out  the  President's  instructions 
to  me,  which  you  oppose,  I  must,  for  the  purpose  of  preventing  a 
collision  between  us,  and  possibly  a  civil  war  in  consequence  of  it , 


40 

remain  silent  for  the  present,  leaving  with  you  the  great  responsi 
bility  of  doing  that  for  which  you  have  no  authority,  and  prevent 
ing  me  from  complying  with  the  President's  orders." 

The  value  of  this  testimony,  which  would  make  me  to  have  re 
ported  to  General  Kearny,  and  placed  myself  and  battalion  under 
his  command,  must  now  be  understood.  I  undertake  to  say  there 
is  no  authentic  modern  instance  of  a  note,  so  innocent  in  itself  and 
extracted  from  the  writer  under  such  circumstances,  so  totally  per 
verted  from  its  meaning,  and  made  the  foundation  of  such  a  pro 
secution  as  I  have  endured. 

If  men  are  to  be  capitally  and  infamously  tried  for  such  a  note? 
no  one  is  safe  in  writing. 

I  am  charged  here  with  a  great  military  crime.  I  should  have 
been  guilty,  not  only  of  it,  but  of  an  inexcusable  breach  of  faith, 
ii  I  had  made  a  report  of  myself  and  battalion  to  General  Kearny, 
and  so  placed  under  the  command  of  that  officer  the  troops  raised 
by  the  means  and  authority  of  Commodore  Stockton,  and  by  him 
entrusted,  to  me. 

I  now  close  this  defence  to  specification  first,  of  charge  two,  for 
disobedience,  of  lawful  orders. 

The  second  specification,  under  the  head  of  mutiny,  is  for  raising 
and  attempting  to  raise  troops,  on  the  25th  of  January,  1847;  and 
is  in  these  words: 

{ :i Specification  2.  In  this,  that  he,  Lieutenant  Colonel  John  C. 
Fremont,  of  the  regiment  of  mounted  riflemen,  United  States  army, 
being  in  command  of  a  battalion  of  volunteers  organized  in  Cali 
fornia,  which  were  placed  by  the  aforesaid  orders  of  the  Secretary 
of  War,  of  June  18,  1846,  under  the  command  of  Brigadier  General 
Kearny,  did  issue  an  order  to  Captain  J.  K.  Wilson,  at  Angeles, 
January  25,  1847,  in  the  following  words,  to  wit: 

ANGELES,  January  25,  1847. 

SIR:  You  are  hereby  authorized  and  directed  to  raise  a  company 
of  men  to  constitute  the  second  company  of  artillery  in  the  Cali 
fornia  service,  and  for  that  purpose  are  detached  from  your  present 
command. 

You  will  please  report  the  number  you  may  be  able  to  enlist 
with  as  little  delay  as  possible.  You  are  authorized  to  enlist  the 
men  for  three  months,  and  to  promise  them  as  compensation  $25 
per  month. 

Respectfully.  , 

J.  C.  FREMONT, 
Lieut.  Col.  commanding  California  force  in  U.  S.  service. 

To  Captain  S.  K.  WILSON, 

Light  Artillery. 

"Thereby  raising  and  attempting  to  raise  troops,  in  violation  and 
contempt  of  the  lawful  command  aforesaid  of  his  superior  officer, 
Brigadier  General  Kearny,  of  date  January  16,  1847,  and  thereby 


41 

acting  openly  in  defiance  of,  and  in  mutiny  against,  the  authority  of 
his  superior  officer  aforesaid,  by  raising  and  attempting  to  raise 
troops,  and  by  proclaiming  himself  to  be,  and  assuming  to  act  as 
commander  of  the  United  States  forces  in  California." 

The  same  act  is  specification  No.  2,  in  charge,  for  disobedience 
of  orders — the  orders  charged  to  have  been  disobeyed  being  the 
order  of  January  16,  1847,  against  the  reorganization  of  the  Cali 
fornia  battalion. 

I  will  consider  both  of  these  specifications  together,  and  arrange 
the  matter  of  defence  under  these  general  heads:  1.  That  I  was,  at 
that  time,  governor  and  commander-in-chie:  in  California.  2.  That 
General  Kearny  had  no  right  to  command  the  battalion  at  that  time. 
3.  That  the  order  of  the  16th  of  January,  1847,  besides  being  ille 
gal  in  itself,  had  no  relation  to  any  other  change  in  the  battalion 
than  the  one  intended  at  the  time  it  was  given. 

1.  That  I  was  then  governor  and  commander-in-chief  in  Cali 
fornia  is  proved  by  the  testimony  of  Commodore  Stockton,  and 
the  production  of  the  original  commission;  and  his  right  to  be 
stow  that  commission  upon  me  resulted  from  his  own  right  to  con 
stitute  himself  governor.  Both  acts  were  done  under  the  law  of 
nations;  and  by  virtue  of  the  right  ojf  conquest;  by  virtue  of  the 
orders  and  instructions  of  the  President  of  the  United  States, 
charging  the  naval  commanders  in  the  Pacific  ocean,  exclusively, 
with  the  conquest  and  ciril  government  of  California,  until  relieved 
under  the  instructions  of  the  5th  of  November,'  1846.  These  instruc 
tions  did  not  arrive  until  after  the  alleged  commission  of  the  act  of 
mutiny  and  disobedience  now  under  examination;  and,  when  they 
did  arrive,  were  never  communicated  to  me  at  all. 

I  am  advised  by  counsel,  that  the  appointment  of  himself  as  gov 
ernor,  by  Commodore  Stockton,  was  a  valid  appointment  under  the 
law  of  nations;  and  that  upon  the  same  principle,  his  appointment 
of  myself  as  his  successor  was  equally  valid;  and  that  in  neither 
case  was  the  approval  of  the  President  of  the  United  S.tates  ne 
cessary  to  the  validity  of  the  appointment,  though  each  revocable 
by  him  at  his  pleasure;  and  therefore  proper  to  be  made  known  to 
him.  This  I  am  advised  is  the  law;  but  being  now  prosecuted  for 
mutiny  and  for  disobedience  of  orders,  in  assuming  and  usurping 
the  governorship  of  California,  and  it  being  the  President  alone 
who  could  order  my  trial  in  this  case,  (accused  as  I  am  by  my  com 
manding  general,)  it  becomes  material  to  show  that  this  appoint 
ment,  and  the  intention  to  make  it  long  before  it  was  made,  was 
duly  communicated  to  him,  and,  while  not  disapproved,  was  im- 
pliedly  sanctioned,  and  never  revoked.  For  the  fact  of  the  com 
munication  of  the  intention  to  appoint  me  his  successor,  I  refer  to 
Governor  Stockton's  official  despatch  of  August  28,  1846,  from  Los 
Angeles,  sent  in  by  Mr.  Carson;  and  for  the  fact  of  his  communi 
cating  the  fact  of  his  having  appointed  me,  I  refer  to  his  official 
despatch  of  January  22,  1847,  from  San  Diego.  The  first  of  these 
despatches  arrived  by  the  hands  of  Mr.  Fitzpatrick  early  in  No 
vember,  1846,  and  their  general  contents  were  noticed  by  the  Presi 
dent  in  his  annual  message  of  December  following,  and  in  the  re- 


42 

ports  of  the  Secretaries  of  War  and  Navy,  and  all  in  terms  of  gen 
eral  approval.  Passages  from  this  message  and  these  reports  have 
been  already  quoted,  and  require  no  repetition;  and  from  them  and 
from  the  communication  of  Governor  Stockton's  acts  as  governor, 
to  Congress,  at  the  time  by  the  administration,  I  assume  it  to  be 
proved  that  the  intent  to  appoint  me  governor  was  known  to  the 
government  in  November,  1846,  and  not  disapproved  by  it.  The 
despatch  of  the  22d  January,  1847,  was  received  from  Lieutenant 
Gray,  of  ^the  navy,  in  the  month  of  April  following;  and,  so  far  as  I 
can  learn,  his  act  was  not  disavowed  in  appointing  me  governor. 
Even  if  it  was,  the  disavowal  could  only  operate  from  the  time  it 
would  be  known  to  me,  which  it  never  was. 

The   commission   from  Governor   Stockton  was  in  these  words: 

"To  all  whom  it  may  concern,  greeting:  Having,  by  authority  of 
the  President  and  Congress  of  the  United  States  of  North  America, 
and  by  right  of  conquest,  taken  possession  of  that  portion  of  territory 
heretofore  known  as  Upper  and  Lower  California,  and  having  de 
clared  the  same  to  be  a  territory  of  the  United  States,  under  the 
name  of  the  territory  of  California,  and  having  established  laws 
for  the  government  of  the  same  territory,  I,  Robert  F.  Stockton, 
governor  and  commander-in-chief  of  the  same,  do  in  virtue  of  the 
authority  in  me  vested,  and  in  obedience  to  the  aforementioned 
laws,  appoint  J.  C.  Fremont,  esq.,  governor  and  commander-'n- 
chief  of  the  territory  of  California,  until  the  President  of  the  U. 
States  shall  otherwise  direct. 

Given  under  my  hand  and  seal  on  this  sixteenth  day  of  January, 

r  i    Anno  Domini  one  thousand  eisrht  hundred  and  forty-seven, 

1  SEAL.  ,1      />,•        j   T     i       A 

at  the  Cmdad  de  los  Angeles. 

R.  F.  STOCKTON,  Governor,  #c. 

On  this  state  of  facts,  I  maintain  that  I  was  duly  and  legally 
.governor  and  commander-in-chief  in  California  at  the  time  of  the 
act  done  which  is  charged  as  mutiny  and  as  disobedience  of 'orders, 
in  the  two  specifications,  under  the  two  charges  referred  to. 

2.  That  General  Kearny  had  no  right  to  command  the  battalion 
at  that  time. 

The  facts  and  the  arguments  in  support  of  this  proposition  are 
the  same  which  have  been  already  used  in  answer  to  specifications 
first  in  both  the  first  charges,  with  the  addition  of  arguments  to 
show  that  General  Kearny  had  no  more  right,  at  that  time,  to  com 
mand  me,  in  my  governorship  of  California,  than  he  had  to  com 
mand  Governor  Stockton  while  in  the  same  office;  and  that,  in  fact, 
this  prosecution,  in  the  specifications  under  consideration,  is  nothing 
but  a  continuation  of  the  contest  which  began  at  San  Diego  with 
Governor  Stockton,  and  which  ought  to  have  been  finished  with  him. 

peneral  Kearny  claimed  authority  to  command  the  battalion, 
first,  by  virtue  of  his  instructions,  and  next,  by  the  assumption  that 
I  had  put  myself  under  his  command.  I  presume  this  latter  ground 
has  been  effectually  disposed  of  heretofore.  The  first  one  has  re 
ceived  some  answers,  and  has  others  to  receive.  It  has  been  argued 
from  the  beginning — from  San  Diego  to  this  place,  and  from  De- 


43 

cember,  1846,  to  this  time — that  the  instructions  to  General  Kearny 
were  conditional:  "Should  you  conquer  and  take  possession  of  New 
Mexico  arid  California,  or  considerable  places  in  either,  you  will 
establish  temporary  civil  governments  therein."  These  instructions 
are  evidently  conditional,  and  only  applicable  to  a  country  uncon- 
quered,  and  without  a  civil  government.  On  the  contrary,  before 
General  Kearny  left  New  Mexico  he  had  "positive"  (using  the 
word  of  his  order)  information  that  all  this  was  already  done,  and 
immediately  acted  upon  that  "positive"  intelligence,  by  diminish 
ing  the  force  with  which  he  had  set  out.  He  met  Mr.  Christopher 
Carson,  bearer  of  official  despatches  from  Governor  Stockton,  and 
of  private  letters  from  myself,  learned  the  true  state  of  things  from 
him,  turned  him  back  as  his  guide,  reduced  "the  army  of  the  West," 
with  which  he  was  to  conquer  California,  to  an  escort  for  his  per 
sonal  safety  in  travelling  through  the  country,  and  went  on,  as  the 
sequel  showed,  not  to  execute  government  orders,  already  executed 
by  others,  but  (what  is  rarely  seen  in  any  military  service)  to  take 
from  others  the  fruits  of  their  toils,  hardships,  dangers,  and  victo 
ries.  He  took  the  bearer  of  despatches,  sent  by  the  real  conquer 
ors,  to  guide  him — show  him  the  way — to  the  conquered  country; 
before  he  arrived  there,  sent  for  aid  from  the  conqueror,  and  re 
ceived  it  in  a  handsome  detachment,  nearly  equal  to  half  his  force, 
and  after  fighting  an  action  with  that  aid,  was  four  days  upon  a  hill 
in  a  state  of  siege,  ff*om  which  he  waS  relieved  by  215  men  sent  out 
by  Commodore  Stockton  to  conduct  him  in  to  San  Diego,  where  he 
was  safe.  This  was  not  the  conquest  of  California,  nor  was  the 
plain  of  San  Pasqual,  or  the  hill  of  San  Bernardo,  the  conquest  of 
" considerable  places"  in  that  province,  so  as  to  give  a  right  to  gov-  , 
ern  it.  The  subsequent  operations  were  under  the  command  of 
Commodore  Stockton;  and  it  is  because  he  should  appear  as  con 
queror,  in  order  to  get  a  right  under  fris  instructions  to  the  gover 
norship,  that  the  claim  has  been  set  i^p  by  General  Kearny  to  have 
commanded  the  troops  to  Los  Angeles,  and  gained  the  victories  of 
the  8th  and  9th  of  January,  and,  thereupon,  in  conjunction  with  the 
capitulation  of  Couenga,  started  a  new  claim  to  the  governorship, 
on  the  assumption  that  he  had  just  conquered  the  country.  This 
new  claim  is  started  in  the  letter  of  17th  January,  1847,  from  Gen 
eral  Kearny  to  Governor  Stockton,  and  clearly  shows  his  own 
Views,  at  that  time,  of  the  conditional  nature  of  his  instructions. 
The  letter  has  been  quoted.  Its  effective  and  applicable  words  at 
this  point  are,  "As,  in  consequence  of  the  defeat  of  the  enemy  on 
the  8th  and  9th  instant,  by  the  troops  under  my  command,  and  the 
capitulation  entered  into  on  the  13th  instant  by  Lieutenant  Colonel 
Fremont  with  the  leaders  of  the  Californias,  &c.,  the  country  may 
now,  for  the  first  time,  be  considered  as  conquered,  and  taken  pos- 
session  of  by  us;  and  as  I  am  prepared  to  carry  out  the  President's 
instructions  to  me,  which  you  oppose,"  &c.  &c. 

This  extract  shows  General  Kearny's  own  opinions  of  his  in 
structions  at  the  time  he  wrote  that  letter,  and  that  they  were 
conditional  upon  the  fact  of  conquering  and  taking  possession  of 
the  country.  It  shows  his  opinion;  but,  if  the  facts  were  not  as 


44 

he  supposed,  to  wit,  that  he  was  commander-in-chief  in  the 
actions  of  the  8th  and  9th,  and  that  the  country  was  then,  for  the 
first  time,  conquered  and  taken  possession  of;  if  these  facts  fail 
him,  as  they  do,  then  his  new  claim  to  command  in  California  fails 
also;  and  Commodore  Stockton,  as  the  commander-in-chief  on  the 
8th  and  9th,  becomes  a  second  time  the  conqueror.  That  the 
instructions  to  General  Kearny  were  intended  to  be  conditional, 
may  well  be  conceived,  from  the  circumstances  under  which  they 
were  issued,  as  well  as  from  their  terms. 

The  navy  had  been  charged,  from  the  beginning  of  the  war,  (and 
before  it  in  anticipation,)  with  the  exclusive  conquest,  preservation, 
and  government,  in  California.  In  giving  a  military  officer  orders 
to  go  into  California  to  conquer,  &c.,  &c.,  the  contingency  that 
everything  required  to  be  done  might  have  been  already  done, 
was  too  obvious  to  be  overlooked,  and  would  naturally  be  pro 
vided  for  in  making  the  military  instructions  conditional. 

The  naval  instructions  say:  "Previous  instructions  have  informed 
you  of  the  intentions  of  this  government,  pending  the  war  with 
Mexico,  to  take  and  hold  possession  of  California.  *  *  * 
The  object  of  the  United  States  is,  under  its  right  as  a  belligerent 
nation,  to  possess  itself  entirely  of  Upper  California. 
The  object  of  the  United  States  has  reference  to  ultimate  peace 
with  Mexico;  and  if,  at  that  peace,  the  basis  of  the  uti  possidetis 
shall  be  established,  the  government  expects,  through  your  forces, 
to  be  found  in  actual  possession  of  Upper  California.  * 
This  will  bring  with  it  the  necessity  of  a  civil  administration. 
Such  a  government  should  be  established  under  your  protection. 
*  *  For  your  further  instruction,  I  enclose  to  you  a  copy 
of  confidential  instructions  from  the  War  Department  to  Brigadier 
General  Kearny,  who  is  ordered  overland  to  California.  You  will 
also  communicate  your  instructions  to  him,  and  inform  him  that 
they  have  the  sanction  of  the  President." 

These  instructions  were  not  received  by  Commodore  Stockton, 
but  were  anticipated  by  him,  and  this  anticipation  obtained  for 
him  the  express  approbation  of  the  President.  The  despatch  of 
the  5th  November,  from  the  Secretary  of  the  Navy  to  the  commo 
dore,  contained  this  clause  in  reference  to  his  operations  in  Cali 
fornia:  "  And  it  is  highly  gratifying  that  so  much  has  been  done  in 
anticipation  of  the  orders  which  have  been  transmitted." 

This  was  written  near  four  months  after  the  transmission  of  the 
orders  of  July  12,  and  is  a  full  ratification  of  all  that  had  been  done 
in  anticipation  of  them. 

But  a  higher  view  remains  to  be  taken  of  the  conditional  char 
acter  of  the  instructions  to  General  Kearny,  a  view  which  involves 
their  absolute  repeal  and  nullity,  unless  understood  conditionally; 
and  I  am  advised  by  counsel  that  even  that  understanding  of  them 
cannot  save  them  from  the  fate  of  total  abrogation  until  subse 
quently  revived  by  the  instructions  of  the  5th  of  November,  1846. 
A  few  dates  and  facts  establish  this  view.  The  instructions  to 
General  Kearny,  on  which  he  relies  for  his  authority,  are  dated  the 
3d  and  18th  of  June,  1846.  Now,  it  so  happens  that,  on  the  12th 


45 

day  of  July,  in  the  month  fallowing,  instructions  of  the  most 
peremptory  character  were  despatched  to  Commodore  Sloat  to  con 
quer,  hold,  and  govern  California,  and  to  let  General  Kearny  know 
of  these  instructions  and  that  they  had  the  sanction  of  the  Presi 
dent.  Here  are  extracts  from  the  orders  to  Commodore  Sloat- 
and,  although  they  did  not  reach  his  hands,  nor  those  of  his  suc 
cessor,  Commodore  Stockton,  until  after  the  country  was  con 
quered,  yet,  I  am  advised  to  say,  their  effect  is  the  same  upon  this- 
prosecution.  This  is  not  the  case  of  an  officer  prosecuted  for  not 
obeying  instructions,  in  which  casef it  must  be  shown  they  came  to 
his  hands;  but  it  is  a  prosecution  against  me,  as  successor  to  Gov 
ernor  Stockton,  for  doing  what  the  instructions  commanded-  In 
this  case,  the  anticipation  of  the  orders  is  an  additional  merit  in 
complying  with  them;  and  such  is  the  case  with  the  orders  in 
question. 

These  instructions  are  near  a  month  later  than  those  to  General 
Kearny,  and  not  only  especially  confide  the  conquest,  preservation, 
and  civil  government  of  California  to  the  naval  commanders,  but 
require  the  naval  forces  to  hold  the  country  till  the  peace,  and 
direct  General  Kearny  to  be  informed  accordingly;  and  further 
informed  that  all  this  instruction  to  the  naval  commanders  had  the 
sanction  of  the  President. 

I,  with  the  battalion  I  commanded,  was  part  of  the  naval  force 
to  which  this  duty  was  confided.  (Commodore  Stockton's  testi 
mony,  37th  day.)  This  order  remained  in  force  until  the  instruc 
tions  of  the  5th  of  November  arrived  in  California,  which  was 
not  until  the  13th  day  of  February,  1847,  AND  WHICH  WERE  NEVER 

COMMUNICATED   TO   ME,  AND   OF  WHICH  I   REMAINED  TOTALLY  IGNORANT 

TILL  SINCE  THE  COMMENCEMENT  or  THIS  TRIAL.  Neither  General 
Kearny,  Commodore  Shubrick,  or  Commodore  Biddle,  communi 
cated  them  to  me,  although  I  was  then  governor  and  commander- 
in-chief  in  California,  under  the  commission  of  Commodore  Stock 
ton,  to  whom  the  instructions  of  the  5th  of  November  were 
addressed;  nor  were  they  communicated  to  Commodore  Stockton 
himself  until  more  than  a  month  after  they  had  been  received. 
They  were  evidently  concealed  from  me,  for  a  purpose  not  yet  ex 
plained.  By  these  instructions  the  military  and  civil  duties,  con 
fided  to  the  navy,  were  transferred  to  the  commanding  officer  on 
land;  another  proof  that  the  land  officer  did  not  then  possess  them, 
and  that  officer  was  specially  named  as  General  Kearny  or  Colonel 
Mason. 

The  instruction  says:  "  The  President  has  deemed  it  best,  for  the 
public  interests,  to  invest  the  military  officer  commanding  with  the 
direction  of  the  operations  on  land,  and  with  the  administrative 
functions  of  government  over  the  people  and  territory  occupied  by 
us.  You  will  relinquish  to  Colonel  Mason,  or  to  General  Kearny, 
if  the  latter  shall  arrive  before  you  have  done  so,  the  entire  ron- 
trol  over  these  matters,  and  'turn  over'  to  him  all  papers  neces 
sary  to  the  performance  of  his  duties.  If  officers  of  the  navy  are 
employed  in  the  performance  of  civil  or  military  duties,  you  will 
withdraw  or  continue  them,  at  your  discretion,  taking  care  to  put 


46 

them  to  their  appropriate  duty  in  the  squadron,  if  the  army  officer 
commanding  does  not  wish  their  services  on  land." 

Until  this  despatch  was  received  by  the  naval  commanders,  those 
of  July  the  12th,  abrogating  those  to  General  Kearny,  remained  in 
full  force;  and  it  was  only  by  virtue  of  these  orders,  of  the  5th  of 
November,  that  he  acquired  the  command,  militarily  or  civilly,  in 
California.  And  it  is  in  evidence  that  Commodore  Shubrick  had 
received  these  instructions,  of  the  12th  of  July,  at  the  time  that 
General  Kearny  visited  him  at  Monterey,  and  had  consultations 
with  him,  and  was  sent  by  him  in  a  ship  to  Yerba  Buena,  and  that 
he  made  known  to  General  Kearfiy,  at  that  time,  that  th'e  naval  com 
manders  were  charged  with  the  whole  conquest,  defence  and  govern 
ment  of  California;  and  that  they  (General  Kearny  and  Commo 
dore  Shubrick)  mutually  agreed  not  to  disturb  the  existing  state  of 
affairs  until  the  government  had  further  been  heard  from. 

It  is  clear  that  the  instructions  to  the  different  branches  of  the 
service  were  not  properly  consistent,  and  that  concurrences  might 
•have  arisen  under  them  that  would  have  necessarily  produced  a  con 
flict  of  authority;  but  it  is  also  clear  that  it  was  the  intent  of 
the  government  that  the  right  and  duty  of  the  navy  to  conquer,  pre 
serve  and  govern  California  should  remain  complete  and  entire 
until  the  arrival  of  the  instructions  of  J^  ovember  5th,  and  that  no 
concurrence  did  arise  that,  under  the  plain  interpretation  of  the 
army  instructions,  could  justify  a  collision.  AH  this  is  fairly  stated 
by  the  Secretary  of  the  Navy,  Mr.  Mason,  under  the  express  orders 
of  the  President,  in  a  despatch  of  the  14th  of  June,  1847,  directed 
to  the  naval  commanding  officer  on  the  California  station. 

That  despatch  contains  thes'e  passages: 

cc  The  misapprehension  between  the  commanding  officers  of  the 
army  and  navy  in  California,  which  is  mentioned  in  the  letter  of 
Commodore  Shubrick,  above  referred  to,  must  long  since  have  been 
removed  by  the  very  explicit  instructions  which  have  since  been  re 
ceived  in  that  country.  At  the  commencement  of 
the  war  with  Mexico  the  United  States  had  no  military  force  in 
California  of  any  description  whatever,  and  the  conquest  of  that 
country  was  from  necessity,  therefore,  devolved  exclusively  upon  the 
navy.  *  *  The  conquest  brought  with  it  the  necessity  of  a  tem 
porary  civil  government,  and,  on  the  12th  of  July,  1846,  Commo 
dore  Sloat  was  informed  that  such  a  government  should  be  estab 
lished  under  his  protection.  Contrary  to  all  expectation,  this  des 
patch  did  not  reach  California  until  the  arrival  there  of  General 
Kearny. 

"  On  the  5th  November,  1846,  Commodore  Stockton  was  informed 
that  the  President  has  deemed  it  best  for  the  public  interests  to 
invest  the  military  officer  commanding  with  the  direction  of  the 
operations  on  land,  and  with  the  administrative  functions  over  the 
people  and  territory  occupied  by  us.  He  was  alro  directed  to  re 
linquish  to  Colonel  Mason,  or  to  General  Kearny,  if  the  latter 
should  arrive  before  he  had  done  so,  the  entire  control  over  these 
matters,  and  to  turn  over  to  him  all  papers  necessary  to  the  per- 


47 

formance  of  his  duties.  It  v^as  believed  that  even  this  despatch- 
might  anticipate  the  arrival  in  California  of  General  Kearny. 

"SIMILAR  instructions  were  communicated  to  'Commodore  Stock 
ton  under  date  of  January  14,  1847,  and  were  renewed  to  Commo 
dore  Shubrick  under  date  of  May  10,  1847.  A  copy  of  these  last 
instructions,  which  on  this  subject  are  very  full  and  distinct,  are 
herewith  enclosed." 

All  these  despatches  were  too  late.  The  mischief  was  all  done 
before  they  arrived,  and  they  leave  the  naval  officers  completely 
justified,  and  General  Kearny  wholly  without  excuse  for  attempting 
to  make  himself  governor  in  California  in  a  case  not  contemplated 
by  his  instructions,  and  in  which  he  would  have  to  commence  with 
disorganizing  an  established  civil  government  before  he  could  begin 
to  organize  one.  His  whole  conduct,  from  the  day  he  met  Mr. 
Carson,  was  contrary  to  the  intent  and  meaning  of  his  instructions. 
He  was  to  conquer  California;  it  was  already  conquered.  He  was 
to  establish  a  civil  government;  it  was  already  done.  He  was  to 
lead  an  army  to  California;  he  took  only  a  personal  escort.  He 
turned  back  two-thirds  of  his  dragoons;  he  should  have  turned 
back  the  whole,  and  himself  with  them.  He  should  not  have  ap 
plied  to  Governor  Stockton  to  send  him  aid  to  San  Pasqual,  and  to 
the  hill  of  San  Bernardo  j  ii  he  intended  to  contend  with  him  fpr 
supremacy  after  he  got -there.  He  should  not  have  attempted  to 
found  a  claim  to  the  governorship  on  the  victories  of  the  8th  and 
9th  of  January,  after  the  refutation  of  his  claim  by  Commodore 
Stockton  at  San  Diego.  He  should  not  have  pretended  to  have 
been  commander-in-chief  on  the  march  to  Los  Angeles,  in  order  to 
found  upon  it  a  claim  to  the  governorship  in  right  of  conquest. 
He  should  not,  even  if  the  letter  of  his  instructions  had  borne  him 
out,  (which  they  did  not,)  have  attempted  to  take  the  fruits  of 
conquest  from  those  who  had  conquered  the  country  before  he 
came  to  it,  and  without  whose  helping  hand  he  could  not  have  got 
to  it. 

I  have  now  made  clear  the  right  of  Governor  Stockton,  under 
whom  I  held  the  governorship  of  California  at  the  time  of  the  act 
done,  which  is  charged  in  the  specifications  under  examination  to 
be  governor  himself,  upon  his  own  assumption  of  the  office,  and 
afterwards  to  appoint  me  his  successor;  and  that  these  governor 
ships  were  valid  under  the  law  of  nations,  until  disapproved  by  the 
President,  or  the  incumbents  in  some  way  lawfully  relieved  or  dis 
charged.  Having  done  this,  I  am  instructed  by  counsel  to  resume 
my  original  position,  as  in  the  letter  of  the  17th  January,  in  de 
claring  that  all  this  difficulty  in  California  was  a  question  between 
my  two  superiors,  which  should  have  been  settled  by  the  govern 
ment  between  them,  and  not  settled  in  my  person  by  trying  me  for 
mutiny  and  disobedience  against  one  of  them — charges  to  which  I 
might  have  been  well  exposed  in  disobeying  the  other.  And  I  am 
further  instructed  by  counsel  to  renew,  and  to  repeat,  in  the  most 
solemn  manner,  the  PROTEST  heretofore  filed  in  the  War  Office 
by  them,  in  my  name,  against  the  ILLEGALITY  and  INJUSTICE 
of  thus  trying  me  for  the  acts  of  Commodore  Stockton  and  General 


48 

Kearny,  or  for  declining  the  responsibility  of  settling  their  disputes 
of  authority^ 

2.  The  second  head  of  my  defence,  in  answer  to  these  two  spe 
cifications  is,  that  General  Kearny  at  that  time  had  no  right  to  com 
mand  the  battalion  to  which  the  order  of  the  16th  of  January  was 
applicable.     The  argument  heretofore  made  on  this  point,  is  refer 
red  to  without  repeating  it,  to  show  that  this  battalion  was  part  of 
the  naval  forces  under  Commodore  Stockton,  and  that  it  was  my 
duty,  as  stated  in  my  letter  of  the  17th  of  January,  to  continue  to 
receive  orders  from  him  in  relation  to  it. 

3.  The  third  head  of  my  defence  to  these  two  specifications,  is, 
that  the  order  of  the  16th  of  January,  1847,  besides  being  illegal 
in  itself,  had  no  relation  to  any  other  change  in  the  battalion  than 
the  changes  intended  at  the  time  it  was  given.     This  illegality  has 
been  heretofore  shown,  both  as  being  issued  without  authority  by 
General  Kearny,  but  also  because  it  was  in  positive  violation  of   the 
rights  of  the  men,  most  of  whom  had   engaged  for  the  expedition 
alone,  and  that  being  over,  were  entitled   by  their  contract,  and  by 
law,  to  their  discharge.     Many  were  accordingly  discharged,  and 
others  engaged,  and  all  for  the  necessary  service  of  the  country, 
and  under  my  authority  as  governor  and  commander-in-chief.     The 
nullity  of   the  order,  as  being  founded  on  the  familiar  note  of  in 
formation  extracted  from  me  by  General  Kearny,  and  perverted  into 
a  military  official   report,  placing  myself  and  the  battalion  under 
his  command,  has  heretofore  been  shown;  and  the  facts  and  argu 
ments  adduced   on  that  point  are  now  referred  to,  without  being 
repeated,  as  applicable  to  this  order  of  the  16th  of  January,  at  its 
present  reproduction,  and  as  often  as  it  shall  be  produced  hereafter. 
Illegal  and  null  as  it  was  for  the  purpose  of  its  issue,  it  is  clear 
this  order  had  no    relation,  at  the  time  it  issued,  to  anything  but 
the   re-organization    then   intended,  and  which   resulted  from  dis 
charges  proper  to  be  made,  and  promoting  Captain  Gillespie  into 
my  place,  I  being  that    day  commissioned   as    governor  and    com 
mander-in-chief,  to  take  effect  on  Commodore  Stockton's  departure. 
The  circumstances  of   the  order,  delivered  in  the  night,  limited  it 
to  that  immediate  impending  operation.     The  charges,  as  preferred 
by  General  Kearny,  so  limited  it,  he  having  testified  before  this 
court  that  he  preferred  but  a  single  charge;  (understood  to  be  mu 
tiny;)  that  these  were  not  his  charges;  that  they  had  been  changed. 
This  can  only  mean  that  he  has  not  extended  the  order  of  the  16th 
of  January  to  subsequent  acts — -to  changes  subsequently  made  in 

•the  battalion.  With  this  corresponds  his  testimony  before  this 
court,  (9th  day,  near  the  close,)  that  he  left  no  orders  for  me 
when  he  left  Los  Angeles.  The  question  then  put  to  General 
Kearny  on  this  point  was,  "Did  you  leave  any  orders  for  Lieu 
tenant  Colonel  Fremont,  or  take  leave  of  him,  or  give  notice  to 
him  of  your  going  away,  or  let  him  know  where  you  were  going?" 
The  answer  is,  UI  did  not;"  this  answer  applying  categori 
cally  and  negatively  to  all  four  points  of  the  interrogatory, 
and  establishing  the  fact  that  General  Kearny  left  Los  An 
geles  without  leaving  any  orders  for  me,  without  taking  leave  of 
me,  without  giving  me  notice  that  he  was  going  away,  and  with- 


49 

out  letting  me  know  where  he  was  going;  and  I  am  instructed  by 
counsel  to  say,  that  it  is  carrying  the  doctrine  of  constructive  crim 
inality  rather  too  far,  (even  if  General  Kearny  had  been  my  law 
ful  and  acknowledged  commander,)  to  construe  into  the  crimes  of 
mutiny,  and  disobedience  of  orders,  and  of  conduct  prejudicial  to 
good  order  and  discipline,  any  act  done  after  he  was  gone,  when  I 
had  no  possible  guide  but  my  own  discretion. 

Specification  3,  under  the  charge  of  mutiny,  and  also  for  disobe 
dience  of  orders,  is,  for  the  order  to  Louis  McLane,  esq.,  of  the 
United  States  navy,  in  his  character  of  major  of  artillery  in  the 
California  service,  to  make  further  enlistments,  and  to  examine 
into  the  defences  of  the  country.  The  answer  to  this  speci 
fication  is  the  same  as  heretofore,  both  with  respect  to  Gen 
eral  Kearny's  authority,  and  my  own  rights  and  duties  as  gov 
ernor  and  commander-in-chief  in  California,  and  the  nullity  and 
inapplicability  of  "the  order  of  January  16th,  1847. 

Specification  4,  under  the  charge  of  mutiny,  is  based  on 
the  letter  of  February  7th,  1847,  to  Commodore  Shubrick — a 
letter  which  is  set  out  in  full  in  the  specification. 

The  o-ffence  imputed  is  twofold;  first,  mutiny,  in  assuming  to  be 

Governor;  and  second,  mutiny,  in  endeavoring  to  entice  Commodore 
hubrick  to  countenance  and  abet  me.  , 

The  letter  was  written  in  answer  to  one  from  Commodore  Shu- 
brick  to  me,  and  I  received  another  in  reply;  that  in  reply  I  will 
now  introduce,  to  show  that  at  least  Commodore  Shubrick  him 
self  did  not  look  upon'  what  I  had  written  in  the  light  in  which 
the  ingenuity  of  this  prosecution  has  contrived  to  represent  it.  3 

U.  S.  SHIP  INDEPENDENCE, 
Harbor  of  Monterey,  February  13,  1847. 

SIR:  I  have  the  honor  to  acknowledge  the  receipt  of  your. letter 
of  the  7th  instant,  and  shall  detain  your  courier  as  short  a  time  as 
possible  for  my  answer,  and  will  also  avail  myself  of  your  kind 
offer  to  forward  despatches  to  the  United  States. 

When  I  wrote  ^to  you  on  the  25th  ultimo,  I  was  not  informed  of 
the  arrival  of  Brigadier  General  Kearny  in  California,  and  ad 
dressed  you  as  the  senior  officer  of  the  army  in  the  territory;  on 
the  28th,  however,  having  understood  that  the  general  was  at  Los 
Angeles,  I  addressed  a  similar  letter  to  him. 

On  the  8th  instant.  General  Kearny  arrived  in  this  harbor,  in  the 
sloop-of-war  Cyane,  and  left  by  the  same  conveyance  on  the  llth 
for  San  Francisco.  While  the  general  was  here,  we  consulted 
fully,  as  enjoined  on  me  by  my  instructions,  and  on  him  by  his,  on 
the  measures  necessary  to  be  taken  by  us  for  the  security  of  the 
territory  of  California. 

I  am  looking  daily  for  the  arrival  of  Commodore  Stockton  in  this 
harbor,  when  I  shall,  of  course,  receive  from  him  a  full  account  of 
the  measures  taken  by  him  while  in  command  of  the  squadron. 

It  is  to  be  hoped  that  the  pleasure  of  the  President  of  the  United 
States  on  the  subject  of  the  organization  of  a  civil  goVernment, 
and  of  the  measures  taken-  by  Commodore  Stockton  and  yourself, 
4 


50 

may  be  soon  known,  and  it  will  give  me  pleasure  at  all  times  to 
co-operate  with  the  civil  government,  as  well  as  with  the  military 
commander-in-chief,  for  the  peace  and  security  of  the  territory. 

I  regret  to  say  that,  not  anticipating  any  unusual  draft  on  them, 
the  funds  brought  by  me  are  barely  sufficient,  with  the  most  eco 
nomical  expenditure,  to  meet  the  wants  of  the  squadron. 

I  am,  very  respectfully,  sir,  your  most  obedient  servant, 

W.  BRANFORD  SHUBRICK, 
Commander-in-chief  U.  S.  naval  force}. 

Lieutenant  Colonel  FKEMONT,  4ce.,  §"c.,  fyc. 

The  plain  deductions  of  this  letter  are,  that  Commodore  Shubrick 
and  General  Kearny,  having  met  at  Monterey,  had  consulted  to 
gether,  compared  their  several  instructions,  agreed  upon  their  re 
spective  powers,  and  arranged  the  course  of  action  they  judged 
proper.  All  this  appears  in  the  third  paragraph.  What  the  course 
,  of  action  agreed  upon  was,  is  to  be  drawn  from  the  fifth  paragraph; 
and  the  necessary  inference  is,  that  it  had  been  found  either  not 
competent  or  not  proper  to  disturb  the  existing  state  of  affairs, 
before  u  the  pleasure  of  the  President'7  should  be  further  ascer 
tained.  The  letter  does  not  bear  any  other  interpretation  ;  so 
that,  whatever  the  tenure  of  my  office  as  governor  may  have  been 
previously,  this  amounts,  in  the  legal  phrase,  to  quieting  me  in 
possession,  by  common  consent,  till  such  time  as  the  government  at 
home  should  direct  differently  or  definitively.  This  is  the  plain 
import  of  the  letter,  and  if  anything  contrary  to  it  was  intended  I 
never  heard  of  it,  nor  was  anything  contrary  done,  till  more  than 
two  weeks  after  the  contingency  reserved  (farther  instructions  from 
the  government)  had  happened.  That  I  did  not  misconstrue  this 
letter,  as  I  received  it  then,  and  as  circumstances  justified  my  con 
struction  of  it,  is  rendered  certain  by  the  additional  light  which  I 
have  upon  it  now.  This  additional  light  is  found  in  the  despatch 
of  Commodore  Shubrick  to  the  government,  of  even  date  with  the 
above  letter  to  me.  In  this  despatch  is  the  following: 

"  SIR:  Since  my  letters  of  the  26th,  27th,  and  28"th  ultimo,  no  im 
portant  change,  so  far  as  I  can  learn,  has  taken  place  in  the  terri 
tory.  The  people  seem  to  be  settling  down  into  quiet  acquiescence 
in  the  change  of  government.  Those  best  acquainted  with  their 
temper  and  disposition  do  not  apprehend  further  disturbance  of  the 
peace  of  the  country. 

"  General  Kearny  arrived  here  on  the  8th,  in  the  sloop-of-war 
Cyane;  and,  after  the  adoption  of  such  measures  as  we  thought 
necessary  here,  I  sent  him  to  San  Francisco,  in  the  Cyane,  to  which 
place  I  should  have  accompanied  him,  but  that  I  am  looking  daily 
for  the  arrival  of  Commodore  Stockton  from  San  Diego,  and  it  is 
important  that  I  should  receive  his  reports  before  I  go  further. 

"  You  will  have  learned  ere  this  that  an  unfortunate  difference  has 
taken  place  between  Commodore  Stockton  and  General  Kearny, 
and  between  the  General  and  Colonel  Fremont,  growing  out  of  the 
appointment  of  Colonel  Fremont  as  civil  governor  of  California  by 


51 

the  commodore,  and  the  refusal  of  the  colonel  to  acknowledge  the 
authority  of  the  general. 

"I  have,  as  enjoined  on  me  by  my  instructions,  exchanged  opin 
ions  with  General  Kearny,  and  shall  continue  to  concert  with  him 
such  measures  as  may  seem  best  for  keeping  quiet  possession  of 
California. 

"  With  regard  to  the  civil  government  of  territory,  authority  for 
the  establishment  of  which  is  contained  in  your  instructions  to 
Commodore  Sloat,  of  12th  July  last,  which  I  received  by  the  Lex 
ington,  measures  have  been,  in  my  opinion,  prematurely  taken  by 
Commodore  Stockton,  and  an  appointment  of  governor  made,  of  a 
gentleman  who,  I  am  led  to  believe,  is  not  acceptable  to  the  people 
of  California;  but  as  the  intention  to  make  the  appointment  was, 
I  understand,  communicated  to  the  President  as  early  as  August 
last,  and  information -as  to  his  wishes  may  be  soon  expected,  /  have 
determined  to  await  such  information,  and  confine  myself,  for  the 
present,  to  arrangements  for  the  quiet  possession  of  the  territory, 
and  for  the  blockade  of  the  coast  of  Mexico." 

Now,  this  is  conclusive  of  Commodore  Shubrick's  intentions  and 
opinions,  his  views  of  his  authority,  and  of  the  manner  he  deter 
mined  to  exercise  it.  It  is  conclusive,  that  though  he  was  pleased 
to  impute  precipitancy  to  the  action  of  Commodore  Stockton,  and 
had  been  "led  to  believe'7  that  the  appointment  made  by  him  was 
not  of  the  right  sort  of  a  person,  yet  that  he  did  not  question  its 
legality,  nor  the  authority  for  making  it.  It  is  also  conclusive  that 
whatever  doubts  he  had  as  to  the  propriety  of  the  appointment 
made  by  Commodore  Stockton,  he  did  not  feel  authorised,  even 
under  the  powers  which  he  held,  to  disturb  it;  or  ,at  least  that  he 
declined  to  do  so.  Not  to  disturb,  was  to  continue;  "to  await" 
information  from  the  government,  concerning  the  appointment,  was 
to  recognize  the  appointment  in  the  meantime,  and,  in  effect,  (if 
that  had  been  necessary,)  to  confirm  it. 

Such  was  the  action  of  Commodore  Shubrick  after  a  comparison 
of  his  instructions  with  those  of  General  Kearny,  after  consultation 
with  that  officer;  and  such  was  the  effect  of  that  action  upon  my 
appointment. 

I  now  proceed  to  show  that,  in  determining  on  this  course  of  ac 
tion,  Commodore  Shubrick  had  the  agreement  and  acquiescence  of 
General  Kearny.  This  appears  in  the  official  dispatch  of  the  latter, 
of  15th  March,  which,  after  relating  his  meeting  with  Commo 
dore  Shubrick  at  Monterey,  on  the  8th  of  February,  proceeds  as 
follows: 

u  On  my  showing  to  Commodore  Shubrick  my  instructions  from 
the  War  Department,  of  June  3d  and  18th,  1846,  he  was  at  once 
prepared  to  pay  all  proper  respect  to  them;  and,  being  at  that  time 
the  commander-in-chief  of  the  naval  forces  on  this  station,  he 
acknowledged  me  as  the  head  and  commander  of  the  troops  in  Cali 
fornia,  which  Commodore  Stockton  and  Lieutenant  Colonel  Fre 
mont  had  hitherto  refused.  He  then  showed  me  the  instructions 
to  Commodore  Sloat,  of  July  12th,  from  the  Navy  Department,  re 
ceived  by  the  Lexington,  at  Valparaiso,  on  the  2d  December,  and 


52 

I 

which  he  had  brought  with  him  from  there;  and,  as  they  contained 
directions  for  Commodore  Sloat  to  take  charge  of  the  civil  affairs 
,  in  California,  I  immediately  told  Commodore  Shubrick  that  I  cheer 
fully  acquiesced^  and  was  ready  to  afford  him  any  assistance  in  my 
power.  We  agreed  upon  our  separate  duties;  and  /  then  went  to 
the  bay  of  San  Francisco,  taking  with  me  Lieutenant  Halleck,  of 
the  engineers,  besides  Captain  Turner  and  Lieutenant  Warner, 
when  was  made  a  reconnoissance  of  the  bay,  with  a  view  to  the  se 
lection  of  sites  for  fortifications,  for  the  protection  of  shipping  in 
the  harbor  and  security  of  the  land  forces." 

This  establishes  that  General  Kearny  acknowledged  the  author 
ity  of  Commodore  Shubrick  over  the  civil  affairs  of  the  territory, 
and  acquiesced  in  the  determination  of  that  officer  not  to  disturb 
Commodore  Stockton's  appointment  until  further  information  from 
the  government;  and  that  the  two  agreed  upon'their  separate  duties 
in  the  premises.  This  letter  also  establishes  another  important  cir 
cumstance,  viz:  the  true  weight  and  value  attached  by  General 
Kearny  himself  to  his  instructions.  "  On  showing  to  Commodore 
Shubrick  my  instructions,  he  was  at  once  prepared  to  pay  all  proper 
respect  to  them,  and  being  at  that  time  commander-in- chief  of  the 
naval  forces,  he  acknowledged  me  AS  THE  HEAD  AND  COMMANDER  OF 
THE  TROOPS,"  &c.  The  latter  part  of  the  sentence  rests  entirely 
upon  General  Kearny;  the  letter  of  Commodore  Shubrick,  contain 
ing  nothing  of  the  sort,  and  the  phrase  used  in  it  toward  General 
K.j  viz:  "  I  sent  him  in  the  Cyane,"  &c.,  would  seem  to  imply  the 
contrary.  But  grant  General  Kearny's  position,  and  it  results  that 
in  his  own  estimation  a  "proper  respect"  to  his  instructions  only 
required  him  to  be  acknowledged  as  "the  head  and  commander  of 
the  troops,"  and  that  he  did  not  consider  himself  entitled  under 
them  to  interfere  with  the  civil  affairs.  General  Kearny  adds,  after 
stating  that  "he  acknowledged  me  as  the  head  and  commander  of 
the  troops,"  the  words,  "which  Commodore  Stockton  and  Lieutenant 
Colonel  Fremont  had  hitherto  refused"  Now,  what  is  the  testimony 
to  this  point?  Commodore  Stockton  testifies:  "After  General 
Kearny  arrived,  and  in  my  quarters  and  in  presence  of  two  of  my 
military  family,  I  offered  to  make  him  commander-in- chief  over  all 
of  us.  He  said  no;  that  the  force  was  mine." 

The  agreement  as  to  their  respective  powers,  between  Commo 
dore  Shubrick  and  General  Kearny,  and  the  determination  of  the 
former,  with  the  acquiescence  of  the  latter,  that  the  state  of  affairs 
then  existing  should  await  further 'information  from  home,  was,  no 
doubt,  the  legal  and  proper  course,  and,  had  it  been  continued  in,  every 
thing  would  have  proceeded  harmoniously.  It  was  continued  "in, 
so  far  as  appears,  until  after  the  receipt  of  the  instructions,  which 
they  had  determined  to  await.  The  wrong  consisted  in  not  obeying 
those  instructions.  I  put  out  of  view  entirely,  in  this  connexion, 
my  right  to  be  lawfully  and  regularly  relieved,  and  plant  myself 
on  the  express  letter  of  the  instructions  of  the  5th  November. 
These  are  mandatory  to  the  naval  commanders  to  relinquish  the 
control  of  the  civil  administration,  and  to  "turn  over"  the  papers 
connected  with  it.  The  only  way  in  which  they  could  be  obeyed 


53 

was*,  for  that  commander  to  inform  me  of  the  order  he  had  received, 
and  take  from  my  hands  the  office,  and  the  archives  connected  with 
it,  that  he  might,  as  directed,  "  relinquish'7  and  "  turn  them  over" 
to  General  Kearny.  For  some  purpose  yet  unexplained — unless  its 
object  is  seen  in  this  prosecution — they  were  not  obeyed.  I  was 
kept  in  ignorance  of  the  wishes  of  the  government,  and  General 
Kearny  undertook  by  wrongful  orders  to  get  possession  from  me 
of  what  he  could  only  lawfully  receive  from  Commodore  Shubrick. 

And  on  this  I  leave  the  defence  of  this  act,  both  where  it  is 
charged  as  mutiny,  and  where  as  an  offence  against  discipline. 

Specification  5,  under  the  charge  of  mutiny,  is  based  on  the 
letter  to  Mr.  Willard  Hall,  and  charged  as  a  design  to  persuade  him 
(Mr.  Hall)  to<aid  me  in  my  mutiny  against  General  Kearny.  The 
first  answer  of  Mr.  Hall  to  the  first  question  put  to  him  (31st  day) 
entirely  negatived  that  charge.  On  the  day  after  Mr.  Hall  came 
into  court,  and  desired  to  explain  his  testimony.  The.  explanation 
went  to  show  that,  by  the  expression  in  the  letter,  a  cannot  suffer 
myself  to  be  interfered  with  by  any  other,"  that  General  Kearny 
was  meant.  The  answer  to  the  next  question,  however,  was,  that 
General  Kearny  was  not  there  at  the  time,  and  that  Mr.  Hall  did 
not  know  where  he  was,  and  so  negatived  the  a  explanation." 
Moreover,  as  I  was  not  in  mutiny  myself,  I  could  not  have  been 
inciting  others  to  mutiny.  The  letter  itself  is  all  the  defence  which 
I  make  to  this  specification. 

Specification  6,  under  the  charge  of  mutiny,  is  based  on  the  pur 
chase  of  an  island  near  the  mouth  of  the  San  Francisco  bay,  for  the 
United  States,  taking  the  title  to  the  United  States,  and  promising 
the  payment  of  $5,000. 

My  answer  appears  upon  the  face  of  the  papers,  that  it  was  done 
as  governor,  and  for  the  benefit  of  the  United  States;  a  fact  which, 
if  I  understand  the  prosecution,  and  the  decision  of  the  court,  re 
fusing  to  receive  any  evidence  to  the  point,  is  admitted. 

Specification  7,  under  the  charge  of  mutiny,  and  specification  4, 
under  the  charge  of  disobedience  of  orders,  are  for  the  same  act 
or  acts,  and  will  be  considered  together.  Not  mustering  the  men 
of  the  California  battalion  for  payment  is  one  of  the  points  of  the 
charge:  the  evidence  shows  that  the  men,  without  exception,  re 
fused  to  be  mustered.  The  officers,  whose  pay  would  not  be  mate 
rially  affected,  were  willing  to  be  mustered.  Not  marching  the 
battalion  to  Yerba  Buena,  and  ordering  it  to  remain  at  San  Gabriel, 
and  ordering  Captain  Owens  not  to  deliver  up  the  cannon  of  the 
battalion,  are  the  essential  points  of  the  rest  of  the  specification, 
with  the  aggravation  of  not  obeying  the  orders  brought  by  Captain 
Turner,  after  promising  to  do  so,  and  disregarding  the  proclamation 
of  General  Kearny  and  Commodore  Shubrick. 

The  order  by  Captain  Turner  was  delivered  on  the  llth of  March: 
on  the  15th  I  gave  my  orders  to  Captain  Owens,  based  upon  my  in 
tended  visit  to  Monterey,  and  on  their  face  intended  to  keep  the 
troops  in  a  condition  to  sustain  themselves,  or  to  repel  actual  in 
vasion. 

No  notice  of  the  President's  instructions  of  the  5th  of  November 


54 

was  sent  to  me,  nor  did  the  joint  proclamation,  or  any  other  paper 
that  I  ever  saw,  refer  to  them.  I  was  then  governor  and  coin- 
mander-in-chief  in  California,  and  had  a  right  to  be  regularly  re 
lieved,  if  any  instructions  had  terminated  my  power,  and  no  one 
had  a  right  to  depose  me  by  force  and  violence. 

The  statement  which  I  shall  now  make,  is  based  upon  the  evi 
dence  given  by  different  witnesses,  who  testified  to  the  'points  I  shall 
mention,  of  whom  Major  Gillespie,  Colonel  Russell,  Lieutenant 
Minor,  of  the  navy,  Captain  Cooke,  Lieutenant  Loker,  were  the 
principal. 

After  the  capitulation  of  Couenga,  the  country  immediately  sub 
sided  into  profound  tranquility,  and  security  of  life,  person,  and 
property,  bccamexas  complete  as  in  any  part  of  the » United  States. 
Travelling  or  at  home,  single  or  in  company,  armed  or  defenceless, 
all  were  safe.  Harmony  and  good  will  prevailed,  and  no  trace  of 
the  suppressed  insurrection,  or  of  resentment  for  what  was  passed, 
was  anywhere  seen.  I  lived  alone,  after  a  short  time,  in  the  ancient 
capital  of  the  governors  general  of  Los  Angeles,  without  guards  or 
military  protection;  the  battalion  having  been  sent  off  nine  miles 
to  the  mission  of  San  Gabriel.  I  lived  in  the  midst  of  the  people 
in  their  ancient  capital,  administering  the  government,  as  a  gover 
nor  lives  in  the  capital  of  any  of  our  States. 

Suddenly,  and  in  the  beginning  of  the  month  of  March,  all  this 
was  changed.  "Men,  armed  to  the  teeth,  were  galloping  about  the 
country."  Groups  of  armed  men  were  constantly  seen.  The  whole 
population  was  in  commotion,  and  everything  verged  towards  vio 
lence  and  bloodshed.  For  what  cause?  The  approach  of  the  Mor 
mons,  the  proclamations  incompatible  with  the  capitulation  of  Cou 
enga,  the  prospect  that  I  was  to  be  deposed  by  violence,  the 
anticipated  non-payment  of  government  liabilities,  and  the  general 
insecurity  which  such  events  inspired.  Such  was  the  cause.  I  de 
termined  to  go  to  Monterey  to  lay  the  state  of  things  before  Gen 
eral  J£earny,  and  gave  all  the  orders  necessary,  to  preserve  tran 
quility  while  I  was  gone.  I  then  made  that  extraordinary  ride  of 
which  testimony  has  been  given.  General  Kearny  is  the  only  wit 
ness  before  the  court  of  what  took  place  at  Monterey.  He  seems 
to  know  but  of  two  events  in  my  interview  with  him:  that  I  in 
sulted  him,  and  offered  to  resign  my  commission.  It  can  hardly 
be  supposed  that  I  rode  400  miles  to  Monterey,  in  less  than  four 
days,  and  back  in  the  same  time  for  such  purposes;  yet  these  are 
the  only  things  done  in  that  visit,  as  established  by  the  testimony 
before  the  court.  To  the  question,  whether  I  did  not  mention  the 
government  liabilities,  the  answer  was  that  he  did  not  recollect  it,  but 
would  have  refused  if  the  application  had  been  made.  That  I  was 
interrogated  in  presence  of  a  witness,  and  admonished  of  the  im 
portance  of  my  answers,  is  proved  by  himself.  It  was  at  that  time 
already  resolved,  as  has  since  appeared,  to  arrest  and  try  me  for 
mutiny,  so  that  something  of  more  importance  to  me  still  seemed 
to  be  impending.  .  A  little  time  was  allowed  for  me  to  consider. 
No  communication  was  made  to  me  of  the  instructions  of  Novem 
ber  5th.  Supposing  that  1  was  to  be  deposed  by  force  and  violence, 


55 

I  submitted,  in  order  to  prevent  that  consequence,  and  the  injurious 
results  to  the  public  service  that  would  follow  such  a  contest,  and 
returned  to  Los  Angeles. 

These  are  the  meagre  facts  which  the  evidence  discloses,  and  on 
which  I  rely  for  my  defence  to  all  the  allegations  of  this  specifi 
cation. 

But  I  think  proper  to  add,  that  the  orders  embraced  in  the  speci 
fication,  though  they  were  all  complied  with,  as  far  as  the  state  of 
the  country  would  allow,  were,  with  a  single  exception — that  of 
re-mustering  the  battalion — illegal.  The  instructions  of  the  5th  of 
November  direct  that  the  naval  commander  shall  "  relinquish"  to 
General  Kearny,  or  Colonel  Mason,  the  control  of  the  civil  admi 
nistration,  and  u  turn  over"  all  papers  connected  with  it.  Simple 
obedience  to  the  instructions  themselves,  therefore,  made  their  com 
munication  to  me,  and  my  consequent  regular  and  lawful  relief  from 
the  governorship,  necessary,  and  all  orders  of  General  Kearny,  or 
any  other  person,  inconsistent  with  that,  were  unlawful,  while  the 
one  concerning  the  archives  were  contrary  to  the  express  letter  of 
the  instructions. 

Specification  8,  under  the  charge  of  mutiny,  and  5,  under  that  of 
disobedience  of  orders,  are  based  on  the  same  act,  and  receive  the 
same  answer  with  the  last  mentioned  specification. 

Specification  9,  of  mutiny,  is  based  upon  the  act  of  ordering  the 
collector  at  San  Pedro,  on  the  21st  of  March,  to  receive  govern 
ment  paper  in  discharge  of  public  dues,  &c.;  and  the  answer  to  it 
is,  that  the  order,  in  writing,  of  that  day  was  to  cover  a  verbal  order 
previously  given,  the  officer  wishing  the  written  order  for  his  justi 
fication;  that  neither  Commodore  Shubrick  nor  any  other  person 
gave  me  any  notice  of  the  President's  instructions  of  November  5, 
1846,  and  that  I  had  not  then,  nor  until  a  week  afterwards  at  Mon 
terey,  yielded  to  what  I  believed  to  be  a  design  to  depose  me, 
by  force  and  violence,  from  the  governorship  of  California. 

Specification  10,  of  the  charge  of  mutiny,  and  6,  of  disobedience  of 
orders,  all  refer  to  acts  done  when  I  was  governor  and  commander- 
in-chief  in  California,  and  are  in  alleged  violation  of  the  order 
of  January  16,  1847.  I  refer  to  'my  previous  answers  to  show  that 
I  was  governor  at  that  time,  and  to  show  the  nullity  and  inapplica 
bility  of  the  orders  of  January  16,  1847. 

Specification  11,  of  mutiny,  and  7  of  disobedience  of  orders,  are 
based  on  the  same  act;  that  of  not  obeying  the  order  to  repair  to 
Monterey,  given  to  me  on  the  26th  and  28th  days  of  March.  This 
failure  to  obey  that  order  is  sufficiently  accounted  for  in  the  testi 
mony,  which  shows  the  danger  of  travelling  at  that  time;  and  there 
was  nothing  on  its  face,  or  in  the  testimony  in  relation  to  it,  which 
.showed  it  to  be  urgent,  or  that  the  public  service  required  risks  of 
person  or  life  in  attempting  to  comply  with  it.  The  words,  < 
desire  to  see  you  in  this  place,"  &c.,  &c.,  as  used'in  the  order, 
seems  not  to  come  within  the  meaning  of  an  order  to  be  obeyed  at 
all  hazards;  and  the  first  clause  of  the  order,  written  on  the  28th 
day  of  March,  directing  me  to  consider  all  instructions  coming 
from  him  (Colonel  Mason)  as  if  they  had  come  from  General 


.56 

Kearny  himself,  seemed  to  encourage  the  same  idea  of  the  want  of 
urgency  in  the  desire  to  see  me  at  Monterey. 
The  following  is  the  clause  of  that  order: 

ij  HEAD-QUARTERS,  lOin  MILITARY  DEPARTMENT, 

a  Monterey,  California ,  March  28,  1847. 

u  SIR:  This  will  be  handed  to  you  by  Colonel  Mason,  1st  dragoons, 
who  goes  to  the  southern  district,  clothed  by  me  with  full  authority 
to  give  such  orders  and  instructions  upon  all  matters,  both  civil 
and  military,  in  that  section  of  country,  as  he  may  deem  proper  and 
necessary.  Any  instructions  he  may  give  to  you  will  be  considered 
as  coming  from  myself." 
i 

The  execution  of  his  own  order,  and  of  consequent  additional 
orders  given  to  me  by  Colonel  Mason,  occupied  so  much  time  that 
it  became  impossible  to  reach  Monterey  within  the  period  fixed  by 
him,  and  delayed  my  departure  until  it  was  further  interfered  with 
by  the  condition  of  the  country. 

As  a  further  answer  to  all  the  orders  given  to  me  on  and  after 
the.  1st  of  March,  1847,  I  am  advised  by  counsel  to  say  that  they 
are  in  violation  of  the  orders  of  General  Scott,  of  November  3, 
1846,  to  General  Kearny,  viz: 

u  It  is  known  that  Lieutenant  Colonel  Fremont,  of  the  United 
States  rifle  regiment,  was,  in  July  last,  with  a  party  of  men,  in  the 
service  of  the  United  States  topographical  engineers,  in  the  neigh 
borhood  of  San  Francisco,  or  Monterey  bay,  engaged  in  joint 
operations  against  Mexico  with  the  United  States  squadron  on  that 
coast.  Should  you  find  him  there,  it  is  desired  that  you  do  not  de 
tain  him  against  his  wishes  a  moment  longer  than  the  necessities  of 
the  service'may  require." 

This  order  was  carried  out  by  Colonel  Mason,  and  came  to  the 
hands  of  General  Kearny  before  any  orders  issued  by  him  with  re 
spect  to  me  on  the  1st  March,  on  which  day  he  addressed  an  official 
letter  to  me,  reciting  that  he  had  the  directions  of  the  general-in- 
chief  not  to  detain  me  against  nay  wishes  a  moment  longer  than 
the  necessities  of  the  service  required,  and  leaving  me  at  "  liberty" 
to  leave  the  country,  after  I  had  complied  with  the  instructions  in 
the  letter  and  with  the  orders  referred  to  I  rely  upon  the  conclu 
ding  paragraph  of  this  official  letter  to  prove  that  General  Kearny, 
at  that  time*  could  not  have  considered  criminal,  and  worthy  of  the 
prosecution  now  carried  on,  any  act  of  mine  previous  to  the  writing 
of  that  letter. 

The  following  is  the  letter: 

HEAD-QUARTERS,  lOTii  MILITARY  DEPARTMENT, 

Monterey,  U.  C.,  March  1,  1847. 

SIR:  By  department  orders  No.  2,  of  this  date,  which  will  be 
handed  to  you  by  Captain  Turner,  1st  dragoons,  A.  A.  A.  G.,  for 
my  command,  you  will  see  that  certain  duties  are  there  required 
of  you  as  commander  of  the  battalion  of  California  volunteers. 


57 

In  addition  to  the  duties  above  referred  to,  I  have  now  to  direct 
that  you  will  bring  with  you,  and  with  as  little  delay  as  possible, 
all  the  archives  and  public  documents  and  papers  which  maybe 
subject  to  your  control,  and  which  appertain  to  the  government  of 
California,  that  I  may  receive  them  from  your  hands  at  this  place, 
the  capital  of  the  territory.  I  have  directions  from  the  general-in- 
chief  not  to  detain  you  in  this  country  against  your  wishes  a  mo 
ment  longer  than  the  necessities  of  the  service  may  require,  and 
you  will  be  at  liberty  to  leave  here  after  you  have  complied  with 
these  instructions,  and  those  in  the  "  orders"  referred  to. 

Very  respectfully,  your  obedient  servant, 

S.  W.  KEARNY, 
Brigadier  General  and  Governor  of  California. 

To  Lieut.  Col.  J.  C.  FREMONT, 

Regiment  of  Mounted  Riflemen^  commanding 

Battalion  of  California  vols.j  Ciudad  de  Los  Jingeles. 

Having  now  answered  all  the  specifications  under  the  charges  of 
mutiny  and  disobedience  of  orders,  I  have  to  say  that  five  of  the 
same  acts,  on  which  these  specifications  are  founded,  are  also  laid 
under  the  charge  of  conduct  prejudicial  to  good  order  and  dis 
cipline.  I  am  advised  by  counsel  that  offences  enumerated  in  the 
rules  and  articles  of  war  cannot  be  prosecuted  among  the  non- 
enumerated  offences  of  the  99th  article  of  war,  (Hough,  page  630,) 
but  I  take  no  exception  to  any  illegality  or  irregularity,  if  such 
there  be  in  the  charges,  and  make  the  same  answers  to  these  five 
specifications,  under  the  charge  under  which  they  are  last  found, 
as  was  made  under  the  two  preceding  charges. 

I  have  deemed  it  my  duty  to  reply  to  each  specification,  because 
it  is  the  duty  of  the  court  to  find  upon  each,  and  because  it  is 
right  to  show  my  conduct  consistent  and  proper  at  all  points.  I 
obeyed  orders,  after  the  first  of  March,  to  avoid  bloodshed  and 
violence.  Not  relieved,  as  governor,  and  deeming  them  illegal,  I 
obeyed.  Now,  being  put  upon  my  trial  according  to  law,  I  claim 
the  benefit  of  law,  and  to  be  considered  governor  until  I  was  re 
lieved.  In  themselves,  most  of  the  specifications,  after  the  first 
leading  ones,  are  either  cumulative  or  insignificant  in  the  presence 
of  the  grave  ones  which  precede  them,  and  which  woufd  hardly  of 
themselves  have  been  considered  worthy  of  such  a  prosecution,  and 
while  replying  separately  to  each  of  these  minor  and  cumulative 
accusations,  I  refer  to  the  main  leading  argument  at  the  opening 
of  the  charges  of  mutiny,  in  usurping  the  office  of  governor,  and 
disobedience  to  the  order  of  January  16,  1847,  as  presenting  the 
general  and  sustained  defence  which  the  gravity  of  the  charges 
required. 

I  now  come  to  a  different  part  of  my  defence — but  of  which  I 
fairly  gave  notice  to  the  court,  and  through  it  to  the  prosecution, 
at  an  early  stage  of  this  trial — that  of  impeaching  the  motives  and 
the  credit  of  the  prosecuting  witness.  To  do  this  is  both  legal  and 
fair,  where  there  is  just  ground  for  it;  and  that  is  abundantly  the  case 
in  this  instance.  A  prosecutor  should  have  none  but  public  mo- 


58 

lives;  his  testimony  should  be  scrupulously  fair  towards  the  ac 
cused.  If  he  contradicts  other  witnesses,  which  General  Kearny 
has  so  much  done,  it  becomes  necessary  to  weigh  their  respective 
credit;  and  in  doing  this  I  have  a  right,  and  moreover  it  is  my  duty 
to  myself  and  to  others,  to  produce  instances  of  erroneous  testi 
mony  he  may  have  exhibited,  either  from  defect  of  memory  or  from 
evil  intent;  and  for  that  purpose  to  contrast  his  own  testimony 
with  itself  where  it  varies,  or  with  that  of  other  witnesses  where 
they  contradict  him.  To  this  part  of  my  defence  I  now  proceed, 
and  speak  first  of  the  acts  which  go  to  the  motives  of  the  prose 
cutor: 

1.  Giving  me  no  notice  of  his  intended  arrest.     He   admits  that 
this  arrest  was  resolved  upon  in  January,  1847,  and  that  I  had  no 
notice  of  it  until  I  was  actually  arrested  on  the  frontiers  in  the  lat 
ter  part  of  August  following.     Others  were  informed  of  it,  but  not 
myself,  the  one  above  all  others  the  most  interested  to  know.     I 
was  brought  across  the  continent  in  a  state  of  virtual  imprisonment, 
to  be  tried  for  a  multitude  of  offences,  charged  to  have  been  com 
mitted  on  the  shores  of    the  Pacific,  without  the   warning  which 
would   enable  me  to  bring  evidence  to  meet  a  single  charge;  while 
my  accuser,  and  general,  brought  with  him  all  that  he  deemed  ne 
cessary  either  of    written  evidence  or  of   witnesses  to    insure  my 
conviction.     It  is  impossible,  in  my  opinion,  to  reconcile  this  con 
duct  with  any  fair  and  honorable  motive.     It  laid  me  under  the  ne 
cessity  of  choosing  between  a  frial,  brought  on  me  by  surprise,  and 
almost    without    the  means    of   defence,    or    of    suffering  ruinous 
charges,    enforced  by    newspaper    publications,    to  hang  over  my 
head.     The  latter,  according  to  Major  Cooke's  testimony,  seems  to 
have  been  General  Kearny's    calculation  ;     and    as  I  deemed  the 
effect  of  such  impending  charges  and  publications  would   be  worse 
than  any  conviction,  I  was  forced  into  a  trial,  unprepared  for  it,  to 
take  the  chance  of  any  testimony  that  might  be  found. 

2.  Denying  me  the  privilege  of  going, to  Mexico  to  join  my  regi 
ment  when  I  had  made  preparation  of  60  men  and  120  horses  to  do 
so,  and  had  not  the  least  doubt  of  reaching  General  Taylor's  camp 
and    thence    going  to  the  regiment   expected  (according  to  infor 
mation    received  from    Washington)  to  be  on   the   road  from  Vera 
Cruz  to  Mexico.     I  expected  to  reach  it  in  July,  which  would  have 
been   in   time   for  the    great  operations    impending,    and  since  so 
grandly  executed.     The  refusal  to  let  me  go  did  me  many  injuries 
which  a   soldier  can    feel;    and,  besides,  left  me  involved   in  debts 
for  my    preparations,   and    was,  further,  in    violation    of  General 
Scott's   directions,    not   to    detain  me   in   the    country,  against  my 
wishes,  a   moment    longer   than    the  necessities    of  the   service  re 
quired;  and,  also,  in    violation    of  his   own  official  letter  to  me   of 
March   1,  1847,  leaving  me   at    liberty  to   quit  the  country  when  I 
pleased,  after  complying  with  a  few  small  orders,  not  amounting  to 
u  necessities"  of  the  service,  but  which  were  complied  with. 

3.  Taking  away  from  me  the  command  of  my  topographical  party; 
taking  away  the    scientific  instruments  which  I    had  so    long,  used; 


59 

leaving  behind  my  geological  and  botanical  specimens  of  near  two 
years'  collection;  leaving  behind  the  artist  of  the  expedition,  (Mr. 
Kern,)  with  his  sketches  and  drawings;  leaving  behind  my  assist 
ant,  (Mr.  King;)  he  and  Mr.  Kern  both  standing  in  a  relation  to  be 
material  witnesses  to  me  in  any  inquiry  into  my  conduct;  denying 
me  the  privilege  of  returning  to  the  United  States  by  any  new  route 
which  would  enable  me  to  correct  previous  explorations,  or  add  to 
geographical  and  scientific  knowledge;  making  me  follow  on  his 
trail  in  the  rear  of  his  Mormon  escort.  All  this  after  he  had,  in 
conformity  to  General  Scott's  instructions,  previously  left  me  at 
"liberty"  to  quit  California  when  I  pleased,  after  executing  the 
few  small  orders  above  referred  to. 

4.  Interfering  with  Commodore  Biddle  to  detain  Major  Gillespie 
in  California,  an  officer  known  to  have  been  intimately  associated 
with  me  in  California,  and  who,  arriving  here  a  fortnight  after  this 
trial  had  commenced,  has  shown  himself  to  be  a  material  witness 
for  me.  The  fact  of  interference  is  admitted;  the  circumstances  at 
tending  it  are  most  suspicious;  the  reasons  given  for  it  most  inad 
equate,  and,  besides,  contradicted  by  the  fact  that  Major  Gillespie 
was  soon  after  allowed  u  to  go  about  the  country  "  and  did  not  do 
the  mischief  which  had  been  apprehended  from  his  being  at  large. 
The  detention  of  Major  Gillespie  was  the  detention  of  Commodore 
Stockton  and  his  party;  so  that  this  interference  delayed  the  a.rri- 
val  not  only  of  Major  Gillespie,  but  of  Commodore  Stockton,  Cap 
tain  Hensley,  and  other  material  witnesses  who  came  with  him. 

5^  Not  communicating  to  me  his  knowledge  of  the  instructions 
of  the  5th  of  November  and  12th  of  July,  1846,  wrhen  a  knowledge 
of  those  instructions  were  so  necessary  for  the  safe  guidance  of  my 
conduct.  The  excuse,  in  relation  to  that  of  the  5th  of  November, 
that  he  was  not  in  the  habit  of  communicating  instructions  to  juni 
ors,  is  invalidated  by  the  fact  of  the  previous  communication  of  those 
of  June,  1846,  when  I  was  equally  junior  militarily,  and  before  I  had 
become  governor  and  commander-in-chief. 

6.  Making    injurious  .representations   to   the   War    Department 
against  me  and  against    the  battalion  under   my  command,  without 
giving  me  any  knowledge  of  such  representations,  and  which  I  have 
only  found  out  in  the  progress  of  this  trial,  in  searching  for  testi 
mony  in  the  department. 

7.  My  reception  at  Monterey  on   March  26th,  for  the  nature  of 
which  I  now  refer  entirely  to  General  Kearny's  testimony.     I  made 
a  most  extraordinary  ride  to  give  information  to  prevent  an  insur 
rection.     I  asked  an  interview  on  business,  and  had  it  granted,  and 
found  Colonel   Mason  with    him.     The  only  thing,  it  would   seem, 
that   I  came   for  in  that   interview,  was  to    insult  General   Kearny 
and    to  offer  my  resignation;    and   he   does  not   even    know  what  I 
went   for.     Certainly  the  public  service,  to  say  nothing  of  myself 
as  an  officer,  required  a  different  kind  of  reception  from  the  one  I 
received. 

8.  The   order   given    to  Colonel  Mason    on    the   28th  of  March, 
after  what  had  happened  in  his  presence  on  the  26th,)  to  proceed 

to  Los  Angeles,  where   I  was,  with  the  power  and   authority  over 


60 

ine,  of  which  I  was  officially  advised  by  letter  of  that  date.  I  no  w 
only  mention  the  order,  in  connexion  with  my  reception  at  Monte 
rey,  as  represented  by  General  Kearny,  and  add  nothing  to  it.  I 
do  not  go  beyond  the  evidence. 

9.  The  fact  of  not  relieving  me  in  some  legal  form  from  the  du 
ties  of  governor  of  California,  after   the  President's  instructions  of 
the  5th  of  November  arrived,  and  concealing  from  me  all  knowledge 
of  those  instructions,  while  putting  the  interrogatories,  the  answers 
to  which  he  has  sworn  he  warned  me  might  be  of  so  much  impor 
tance. 

10.  The  march  of  the  Mormons  upon   Los  Angeles,  when  I  was 
expected  to  be  there,  and  would  'have  been,  except  for  the  urgent 
business  which  carried  me  to  Monterey — the  "  crushing  "  that  might 
have  taken  place,  if  a  li  revolt™  of  the  people  had  not  been  appre 
hended — and  all  the  circumstances  of  that  movement  I  leave  where 
the  evidence  placed  it. 

11.  The  conduct  of  Colonel  Mason  to  me  at  Los  Angeles,  (so  far 
as  the  evidence  discloses  it,)  is  by  me  referred  to  the  full  authority 
over   me,  with   which   he  was  clothed   by  General  Kearny,  and  of 
which  I  was  notified  in  this  clause  of  General  Kearny's  official  let 
ter  to  me: 

f  "Sin:  This  will  be  handed  to  you  by  Colonel  Mason,  1st  dragoons, 
who  goes  to  the  southern  district,  clothed  by  me  with  full  author 
ity  to  give  such  orders  and  instructions  in  that  section  of  the  coun 
try  as  he  may  deem  proper  and  necessary.  Any  instructions  he 
may  give  to  you  will  be  considered  as  coming  from  myself." 

12.  The  exhibition  of  myself  and  the  citizens  of  my  topographi 
cal  party  at  Monterey,  on  the  30th  May — the  circumstances  of  the 
march  from  that  place  to  Fort  Leavenwprth,  and  the  manner  of  the 
arrest  there — I  leave  in  like  manner  where  the  evidence  placed  it; 
giving   it   as  my  opinion,  in  the  twelve   instances    enumerated,  be 
sides  in  many  others  to  be  seen  in  the  testimony,  that  no  presump 
tion  of  acting  from  a  sense  of  public  duty  can  outweigh   the  facts 
and  appearances  to  the  contrary,  and  that  all  these  twelve  instances, 
and  others  to  be  seen  in  the  testimony,  go  to  impeach  his  motives 
in  this  prosecution. 

I  now  proceed  to  the  last  point  of  my  defence — the  impeachment 
of  the  credit  of  General  Kearny  as  a  witness  before  this  court.  The 
law  gives  me  the  right  to  do  so.  Morality  condemns  the  exercise 
of  that  right,  unless  sternly  justified  by  credible  evidence.  I  feel- 
so  justified.  I  also  feel  that  this  case,  above  all  others,  admits  of 
the  exercise  of  all  the  rights  against  this  witness  which  the  law  and 
the  evidence  allow  to  the  accused. 

It  is  a  case  in  which  the  witness  comprises,  in  his  own  person, 
the  character  of  accuser,  prosecutor,  leading  witness,  commanding 
general,  arresting  officer — and  bringing  me,  by  virtue  of  his  supe- 


61 

rior  rank,  three  thousand  miles  across  the  continent,  to  be  tried? 
without  warning,  upon  unknown  charges,  or  to  be  ruined  by  infa-' 
mous  accusations  hanging  over  me  and  urged  in  the  newspapers. 
This  is  the  case,  and  I  claim  in  it  the  right  of  impeaching  the 
credit  of  the  witness,  both  upon  his  own  swearing  and  that  of 
others. 

Referring  then  to  the  points  on  which  the  credit  of  the  witness 
is  already  impeached  in  other  parts  of  the  defence,  I  will  first  call 
attention,  under  this  head,  to  what  relates  to  the  expedition  of 
December  and  January,  1846  and  1847,  from  San  Diego  to  Los 
Angeles,  and  especially  with  reference  to  the  testimony  concerning 
the  command  of  the  troops  in  that  expedition.  This  is  a  matter  on 
which  General  Kearny  lays  great  stress  throughout,  bottoming,  at 
one  time,  his  claim  to  chief  authority  in  the  province,  mainly  on 
the  results  of  that  expedition,  and  his  alleged  command  of  it.  I 
shall,  consequently,  examine  and  test  what  he  says  in  relation  to 
it,  with  some  minuteness. 

And  first,  as  to  the  point,  at  whose  instance  was  the  expedition 
raised  and  marched?  There  is  great  discrepancy  here.  In  General 
Kearny's  letter  of  17th  January  to  the  department  he  says: 

"I  have  to  state  that  the  march  of  the  troops  from  San  Diego  to 
this  place  was  reluctantly  consented  to  by  Commodore  Stockton }  on 
my  urgent  advice  that  he  should  not  leave  Lieutenant  Colonel  Fre 
mont  unsupported  to  fight  a  battle  on  which  the  fate  of  California 
might,  for  a  long  time,  depend;  the  correspondence  to  prove  which 
is  now  with  my  papers  at  San  Diego"  &c.,  &c. 

In    his    cross-examination,   on  the  fourth    day    of   the'  trial,   he 

says: 

"In  the  latter  end  of  December,  an  expedition  was  organized  at 
San  Diego  to  march  to  Los  Angeles  to  assist  Lieutenant  Colonel 
Fremont;  and  it  was  organized  in  consequence ,  as  I  believe,  of  this 
paper,  which  is  a  copy  of  a  letter  from  me  to  Commodore  Stockton," 
(referring  to  his  letter  of  December  22,  hereafter  quoted.) 

Let  us  contrast  this  first  positive  assertion,  and  second  more  re 
served  declaration  of  belief,  with  facts,  with  other  testimony, 
and  finally  with  the  "proof"  which  General  Kearny  tenders. 

Commodore  Stockton  testifies: 

"After  General  Kearny  arrived,  (on  the  12th  December,)  and  in 
my  quarters,  and  in  presence  of  two  of  my  military  family,  I 
offered  to  make  him  commander-in-  chief  over  all  of  us,  and  I  offered 
to  go  as  his  aid-de-camp.  He  said  no;  that  the  force  was  mine; 
and  he  would  go  as  my  aid-de-camp,  or  accompany  me." 

Now,  "to  go"  where?  to  "accompany"  where? 

This,  if  not  sufficiently  explicit,  is  made  entirely  so.  by  the  cer 
tificate  of  Messrs.    Spieden  and   Mosely,   of  the   navy,    offered  by 
Commodore  Stockton, 'in  corroboration,  under  the   sanction    i 
oath,  and,  of  course,  forming  a  proper  interpretation  of  his  words. 
This  certificate  is  as  follows; 


62 

We,  the  undersigned,  were  present  at  a  conversation  held  be 
tween  Commodore  Stockton  and  General  Kearny,  at  San  Diego, 
shortly  after  the  arrival  of  the  general,  in  which  conversation  the 
commodore  offered  to  give  General  Kearny  the  "command-in- 
chief "  of  the,  forces  he  was  preparing  to  march  with  to  the  Ciudad 
de  los  Angeles,  and  to  act  as  his  aid  de- camp.  This  offer  the  general 
declined,  but  said  he  would  be  most  happy  to  go  with  the  commo 
dore  as  his  aid-de-camp,  and  assist  him  with  his  head  and  hand. 

WILLIAM  SPIEDEN,  U.  S.  JV. 
SAMUEL  MOSELEY,  U.  S.  JV. 

SAN  DIEGO,  February  5,  1847. 

Again,  Commodore  Stockton  testifies  that,  at  a  subsequent  inter 
view,  a  few  days  afterwards,  he  made  to  General  Kearny  "the  same 
offer,  in  pretty  much  the  same  language,  and  received  pretty  much 
the  same  answer." 

It  is  certain,  then,  that  General  Kearny's  letter  of  the  22d  De 
cember  was  not  the  inducing  cause  of  the  expedition,  as  "believed," 
in  General  Kearny's  testimony,  and  that  "the  march  of  the  troops" 
was  not  a  matter  that  Commodore  Stockton  "reluctantly  assented 
to,"  as  asserted  in  General  Kearny's  official  letter;  and  it  is  also 
certain  that  General  Kearny  could  not  have  supposed  either  to  be  the 
case,  for  he  had  been  informed  ten  days  before  of  the  design  to 
send  the  expedition;  that  it  was  "preparing  to  march;"  and  he 
had  been  twice  offered,  and  had  twice  declined,  the  command  of  it. 

Commodore  Stockton  further  testifies: 

"  I  now  set  to  work  to  make  the  best  preparations  I  could  to 
commence  our  march  for  the  Ciudad  de  los  Angeles.  During  this 
time  an  expedition  that  had  been  sent  to  the  south  for  horses  re 
turned,  and  brought  with  it  a  number  of  horses  and  cattle.  Cap 
tain  Turner  was  allowed  to  take  his  pick  of  the  horses  for  the  dra 
goons.  After  he  had  done  so  he  wrote  to  me  this  note: 

SAN  DIEGO,  December  23,  1846. 

COMMODORE:  In  compliance  with  your  verbal  instruction  to  ex 
amine  and  report  upon  the  condition  of  the  public  horses  turned 
over  to  me  for  the  use  of  C  company,  1st  dragoons,  I  have  the 
honor  to  state  that,  in  my  opinion,  not  one  of  the  horses  referred 
to  is  fit  for  dragoon  service,  being  too  poor  and  weak  for  any  such 
purpose;  also,  that  the  company  of  dragoons,  under  my  command, 
can  do  much  better  service  on  foot  than  if  mounted  on  those  horses. 

I  am,  sir,  with  high  respect,  your  obedient  servant, 

H.  S.  TURNER, 
Captain  1st  dragoons,  commanding  company  C. 

Commodore  R.  F.  STOCKTON, 

United. States  Navy,  commanding,  #c." 

The  exact  day  of  the  return  of  this  expedition  for  horses  and 
cattle  does  not  appear.  But,  as  there  had  been  time  for  Captain 


63 

Turner  to  be  allowed  to  "  take  his  pick"  from  the  horses,  examine 
them,  and  make  a  report  upon  them  by  the  23d  of  December,  it  is 
nearly  certain  that  it  must  have  returned  by  the  22d;  and  hence  it 
would  seem  that  General  Kearny's  letter,  sent  to  Commodore 
Stockton  in  the  night  of  the  last  mentioned  day,  in  which  he  "  re 
commends"  the  expedition,  and  in  which  he  claims  the  whole  merit 
of  the  march,  and  to  have  induced  Commodore  Stockton  reluctantly 
to  consent  to  it,  was  not  written  till  he  had  not  only  been  repeat 
edly  informed  that  the  expedition  was  in  preparation,  and  he  had 
been  twice  offered  the  command  of  it,  but  not  till  the  horses  and 
cattle  for  its  use  had  actually  arrived,  and  probably  a  part  of  them 
turned  over  to  his  own  company  of  dragoons.  This,  indeed,  is 
rendered  nearly  certain  by  the  fact  that  the  preparations  for  the 
expedition  were  so  far  advanced  that  Commodore  Stockton's  gen* 
eral  orders  for  the  march  were  issued  on  the  day  next  following 
General  Kearny's  letter,  which  he  pretends,  under  oath,  to  have 
been  the  inducing  cause  of  the  expedition. 

But  General  Kearny  is  entitled  to  the  benefit  of  the  "proof" 
which  he  vouches  to  the  department  in  this  passage  of  his  letter: 

'  "I  have  to  state  that  the  march  of  the  troops  from  San  Diego  to 
to  this  place  was  reluctantly  consented  to  by  Commodore  Stockton, 
on  my  urgent  advice  that  he  should  not  leave  Colonel  Fremont  un 
supported  to  fight  a  battle  on  which  the  fate  of  California  might 
for  a  long  time  depend;  the  correspondence  to  prove  which  is  now 
with  my  papers  at  San  Diego,  and  a  copy  of  which  will  be  fur 
nished  to  you  on  my  return  to  that  place." 

This  "correspondence,"  as  he  certifies  it  on  the  twelfth  day  of 
the  trial,  consists  of  three  letters  and  Commodore  Stockton's  gen 
eral  orders  for  the  march.  I  will  set  out  all  of  them: 

SAN  DIEGO,  December  22,  1846. 

DEAR  COMMODORE:  If  you  can  take  from  here  a  sufficient  force 
to  oppose  the  Cahfornians,  now  supposed  to  be  near  the  Pueblo, 
and  waiting  for  the  approach  of  Lieutenant  Colonel  Fremont,  I 
advise  that  you  do  so,  and  that  you  march  with  that  force  as  early 
as  possible  in  the  direction  of  the  Pueblo,  by  which  you  will  either 
be  able  to  form  a  junction  with  Lieutenant  Colonel  Fremont,  or 
make  a  diversion  very  much  in  his  favor. 

I  do  not  think  that  Lieutenant  Colonel  Fremont  should  be  left 
unsupported  to  fight  a  battle  upon  which  the  fate  of  California  may, 
for  a  long  time,  depend,  if  there  are  troops  here  to  act  in  concert 
with  him  Your  force,  as  it  advances,  might  surprise  the  enemy  at 
the  St.  Louis  mission,  and  make  prisoners  of  them. 

I  shall  be  happy,  in  such  an  expedition,  to  accompany  you,  and 
to  trive  you  any  aid,  either  of  head  or  hand,  of  which  I  may  be 
capable. 

Yours,  truly, 

S.  W.  KEARNY, 

Brigadier  General. 

To  Commodore  STOCKTON, 

Commanding  United  States  forces,  San  Diego. 


64 

HEAD-QUARTERS,  SAN  DIEGO, 

December  23,  1846, 

DEAR  GENERAL:  Your  note  of  yesterday  was  handed  to  me  last 
night  by  Captain  Turner,  of  *;he  dragoons. 

In  reply  to  that  note,  permit  me  to  refer  you  to  the  conversation 
held  with  you  yesterday  morning  at  your  quarters.  I  stated  to  you 
distinctly  that  I  intended  to  march  upon  St.  Louis  Rey  as  soon  as 
possible,  with  a  part  of  the  force  under  my  command,  and  that  I 
was  very  desirous  to  march  on  to  the  Pueblo  to  co-operate  with 
Lieutenant  Colonel  Fremont:,  but  my  movements  after,  to  St.  Louis 
Rey,  would  depend  entirely  upon  the  information  that  I  might  re 
ceive  as  to  the  movements  of  Colonel  Fremont  and  the  enemy.  It 
might  be  necessary  for  me  to  stop  the  pass  of  San  Felipe,  or  march 
back  to  San  Diego. 

Now,  my  dear  general,  if  the  object  of  your  note  is  to  advise  me 
to  do  anything  which  would  enable  a  large  force  of  the  enemy  to 
get  into  my  rear  and  cut  off  my  communication  with  San  Diego, 
and  hazard  the  safety  of  the  garrison  and  the  shins  in  the  harbor, 
you  will  excuse  me  for  saying  I  cannot  follow  any  such  advice. 

My  PURPOSE  still  is  to  march  for  St.  Louis  Rey  as  soon  as  I  can 
get  the  DRAGOONS  and  riflemen  mounted,  which  I  hope  to  do  in  two 
clays. 

Faithfully,  your  obedient  servant, 

R.  F.  STOCKTON, 
Commander-in-chief  and  governor 

of  the  territory  of  California. 

To  Brigadier  General  S.  W.  KEARNY, 

United  States  Army. 

SAN  DIEGO,  'December  23,  1846. 

DEAR  COMMODORE:  I  have  received  yours  of  this  date,  repeating, 
as  you  say,  what  you  stated  to  me  yesterday;  and  in  reply  I  have 
only  to  remark  that,  if  I  had  so  understood  you,  I  certainly  would 
not  have  written  my  letter  to  you  of  last  evening. 

You  certainly  could  not  for  a  moment  suppose  that  I  wouldjad- 
vise  or  suggest  to  you  any  movement  which  might  endanger  the 
safety  of  the  garrison  and  the  ships  in  the  harbor. 

My  letter  of  yesterday's  date  stated  that  "if  you  can  take  from 
here,"  &c.,  of  which  you  were  the  judge,  and  of  which  I  knew 
nothing. 

Truly  yours, 

S.  W.  KEARNY, 

Brigadier  General. 
Commodore  R.  F.  STOCKTON, 

Commanding  U.  S.  Navy,  fyc.,  San  Diego. 

GENERAL  ORDEIS: 

The  forces  composed  of  Captain  Tilghman's  company  of  artillery, 
a  detachment  of  the  1st  regiment  of  dragoons,  companies  A  and  B 
of  the  California  battalion  of  mounted  riflemen,  and  a  detachment 


65 

of  sailors  and  marines,  from  the  frigates  Congress  and  Savannah 
and  the  ship  Portsmouth,  will  take  up  the  line  of  march  for  the 
Ciudad  de  los  Angeles  on  Monday  morning,  the  28th  instant,  at  10 
o'clock,  a.  m. 

By  order  of  the  commander-in-chief. 

J.  ZIELAN, 

Brevet  Captain  and  Adjutant. 
SAN  DIEGO,  December  23,  1846. 

The  character  of  this  correspondence  entirely  destroys  General 
Kearny's  asseverations;  both  the  one  in  his  report  that  Commodore 
Stockton  "  reluctantly  consented"  to  the  march  of  the  troops,  and 
the  one  before  the  court  that  he  "  believed"  that  the  expedition 
was  organized  in  consequence  of  his  letter  of  a.dvice. 

Commodore  Stockton's  letter  is  explicit  both  of  his  present  and 
previous  "  intention,"  "desire"  and  "purpose"  to  march  "as 
soon  as  possible;"  while  the  reference  to  the  dragoons,  which  were 
General  Kearny's  especial  corps,  shows  that  the  subject  of  the  ex 
pedition  must  have  been  previously  entertained  between  the  two 
correspondents.  Allow  General  Kearny,  howjBver,  the  benefit  of 
any  misunderstanding,  touching  Commodore  Stockton's  disposition 
and  intentions,  that  he  may  have  been  under  when  he  wrote  his 
letter,  the  commodore's  reply  corrects  all  such  mistakes,  and 
leaves  General  Kearny's  subsequent  assertions  on  this  head  direct 
contradictions  of  the  declarations  of  Commodore  Stockton. 

The  next  question  in  connexion  with  this  expedition  is,  who  was 
its  commander?  General  Kearny  says  he  was;  Commodore  Stock 
ton,  sustained  bythe  testimony  of  many  others,  says  he  was.  As 
it  could  not  have  had  two  commanders,  at  the  same  time,  I  will 
compare  the  testimony.  General  Kearny's  claim  first  comes  to  at 
tention  in  a  letter  to  the  department,  of  which  the  following  is  the 
first  paragraph: 

"'HEAD  QUARTERS,  ARMY  OF  THE  WEST, 

"  Ciudad  de  los  Angeles,  January  12,  1847. 

"  SIR:  I  have  the  honor  to  report  that,  at  the  request  of  Commo 
dore  R.  F.  Stockton,  United  States  navy,  (who  in  September  last 
assumed  the  title  of  governor  of  California,)  I  consented  to  TAKE 
COMMAND  of  an  expedition  to  this  place,  (the  capital  of  the  cqu'n- 
try,)  and  that  on  the  29th  December,  I  left  San  Diego  with  about 
500  men,  consisting  of  60  dismounted  dragoons,  under  Captain 
Turner,  50  California  volunteers,  and  the  remainder  of  marines  and 
sailors,  with  a  battery  of  artillery;  Lieutenant  Emory  (topographi 
cal  engineers)  acting  as  assistant  adjutant  general.  Commodore 
Stockton  accompanied  us." 

Here  the  claim  to  have  been  the  commander  is  plain,  unequivo 
cal,  and  unconditional.  In  his  letter  to  me,  however,  of  the  same 
date,  (January  12th,)  he  expresses  it  perhaps  even  more  strongly; 

5 


66 

since  Commodore  Stockton  is  not  mentioned  at  all,  and  the  pro 
noun  "I"  and  "me"  exclude  the  idea  of  any  participant  in  the 
" possession"  or  command: 

PUEBLA  DE  LOS   ANGELES, 

January  12,  1847. — Tuesday ,  6,  p.  m. 

DEAR  FREMONT:  I  am  here  in  possession  of  this  place,  with  sai 
lors  and  marines.  We  met  and  defeated  the  whole  force  of  the 
Californians  the  8th  and  9th.  They  have  not  now  to  exceed  300 
men  concentrated.  Avoid  charging  them,  and  come  to  me  at  this 
place. 

Acknowledge  the  hour  of  receipt  of  this,  and  when  I  may  ex 
pect  you.  Regards  to  Russell. 

Yours, 

S.  W.  KEARNY, 

t  Brigadier  General. 

Lieutenant  Colonel  FREMONT. 

At  the  next  step,  General  Kearny  slightly  varies  his  claim,  and 
admits  some  qualification  to  the  completeness  of  his  command. 
This  is  on  his  cross-examination.  (Fourth  day  of  the  trial.) 

"In  the  latter  end  of  December,  an  expedition  was  organized  at 
San  Diego  to  march  to  Los  Angeles,  to  assist  Lieutenant  Colonel 
Fremont,  and  it  was  organized  in  .consequence,  as  I  believe,  of 
this  paper,  which  is  a  copy  of  a  letter  from  me  to  Commodore 
Stockton,  referring  to  his  letter  to  Commodore  Stockton  of  De 
cember  22.)  Commodore  Stockton,  at  that  time  was  acting  as 
g'overnor  of  California,  so  styling  himself.  *  *  *  *  He  de 
termined  on  the  expedition,  and  on  the  morning  of  the  29th  De 
cember  the  troops  were  paraded  at  San  Diego  for  the  inarch.  The 
troops  consisted  of  about  five  hundred  sailors  and  marines,  about 
sixty  dragoons,  and  about  forty  or  fifty  vokinteers.  While  they 
were  on  parade,  Commodore  Stockton  called  several  officers  to 
gether;  Captain  Turner,  of  the  dragoons,  and  Lieutenant  Minor, 
of  the  navy,  I  know  were  there,  and  several  others.  He  then  re 
marked  to  them  to  the  following  purport:  4  Gentlemen,  General 
Kearny  has  kindly  consented  to  take  the  command  of  the  troops 
on  the  expedition;  you  will,  therefore,  look  upon  him  as  your  com 
mander.  1  shall  (ro  along  as  GOVERNOR  and  commander-in- chief  in 
CALIFORNIA.'  We  marched  toward  Los  Angeles,"  &c.  *  *  *  * 
"  The  troops,  under  my  command,  inarched  into  Los  Angeles  on  the 
10th  of  January,"  &c. 

At  the  next  stage,  in  reply  to  a  question  of  the  judge  advocate, 
he  returns  to  the  positive  and  unconditional  assertion  of  command: 

"By  the  act  of  Commodore  Stockton,  who  styled  himself  gov 
ernor  of  California,  the  sailors  and  marines  were  placed  UNDER  MY 
COMMAND,  on  the  29th  December,  1846,  for  the  march  to  Los  An 
geles.  I  COMMANDED  THEM  ON  THE  EXPEDITION;  Commodore  Stock- 


67     - 

ton  accompanied  us.     I  exercised  no  command  whatever  over  ConT 
modore  Stockton,  nor  did  he  exert  any  whatever  ove    me." 

Afterward  (fourteenth  day)  under  examination  by  the  court,  and 
when  information  had  been  received  here  of  the  arrival  of  Com 
modore  Stockton  in  the  country,  the  witness  greatly  modified  his 
position  on  this  point,  and  admits  several  acts  of  authority  done 
on  the  march  by  Commodore  Stockton,  and  that  he  "felt  it  his 
duty"  to  "consult  the  wishes"  of  the  commodore. 

"I  found  Commodore  Stockton,  on  my  arrival  at  San  Diego,  on 
the  12th  December,  1846,  in  command  of  the  Pacific  squadron, 
having  several  ships,  either  two  or  three,  in  the  harbor  at  that 
place.  Most  of  his  sailors  were  on  shore.  He  had  assumed  the 
title  of  governor  of  California  in  the  month  of  August  previous. 
Jill  at  San  Diego  addressed  him  as  'governor.'  I  DID  THE  SAME. 

"After  he  had  determined  on  the  march  from  San  Diego  to  Los 
Angeles,  the  troops  being  paraded  for  it  on  the  29th  December,  he, 
in  the  presence  of  several  officers,  among  whom  were  myself,  Cap 
tain  Turner  of  the  dragoons,  and  Lieutenant  Minor,  of  the  navy, 
and  others,  whose  names  I  do  not  recollect,  remarked  to  them: 
'Gentlemen,  General  Kearny  has  kindly  consented  to  take  command 
of  the  troops  in  this  expedition;  you  will  therefore  consider  him 
as  your  commander.  I  will  go  along  as  GOVERNOR  and  commander- 
in-chief  IN  CALIFORNIA.'  Under  Commodore  Stockton's  directions 
every  arrangement  for  the  expedition  was  made.  I  had  nothing 
whatever  to  do  with  it.  We  marched  from  San  Diego  to  Los  An 
geles.  Whilst  on  the  march,  a  few  days  before  reaching  Los  An 
geles,  a  commission  of  two  citizens,  as  I  believe,  on  behalf  of  Go 
vernor  Flores,  came  to  Commodore  Stockton  with  a  communication 
to  him  as  the  governor,  or  commander-in-chief  in  California.  Com 
modore  Stockton  replied  to  that  communication  without  consulting 
me.  On  the  march  I  at  no  time  considered  Commodore  Stockton 
under  my  direction;  nor  did  I  at  any  time  consider  myself  under 
his.  His  assimilated  rank  to  officers  of  the  army  at  that  time  was, 
and  now  is,  and  will  for  upwards  of  a  year  remain,  that  of  a  col 
onel. 

"Although  I  did  not  consider  myself  at  any  time,  or  under  any 
circumstances,  as  under  the  orders  of  Commodore  Stockton,  yet,  as 
so  large  a  portion  of  my  command  was  of  sailors  and  marines,  I 
felt  it  my  duty  on  all  important  subjects  to  consult  his  wishes,  and, 
as  far  as  I  consistently  could  do  so,  to  comply  with  them." 

But  it  was  not  till  the  fifty-first  day  of  this  trial,  when  he  had 
had  the  benefit  of  several  weeks  reflection,  added  to  information  of 
the  character  of  the  testimony  delivered  by  Commodore  Stockton 
and  others,  and  when  he  came  into  court  fortified  with  his  own 
questions,  draw.n  up  by  himself  to  square  with  pre-arranged  an 
swers,  that  he  could  be  brought  to  the  point  of  admitting  that,  dur 
ing  the  march,  the  commodore  had  exercised  the  prerogative  of 
sending,  him  what  he  calls  "messages,"  but  the  commodore  calls 
"orders,"  and  had  directed  many  movements  of  the  expeditioh. 
But  even  this  day's  admissions  are  so  reluctant,  and  with  so  many 


.     68 

reservations,  that    for    the    plain   facts  other    testimony    must    ne 
cessarily  be  brought  in. 

General  Kearny  recites  twice,  and  with  much  particularity,  in  his 
testimony  to  this  point,  his  version  of  what  Commodore  Stockton 
said  to  the  troops  before  marching  from  San  Diego  on  the  subject 
of  the  command;  laboring,  by  an  ingenious  turn  of  the  last  clause, 
to  draw  a  distinction  between  the  commander-in-chief  in  the 
territory,  and  the  commander-in-chief  of  the  troops.  This  is 
his  preci.se  version  of  Governor  Stockton's  remarks :  "Gentle 
men,  General  Kearny  has  kindly  consented  to  take  command  of 
the  troops  in  this  expedition;  you  will  therefore  look  upon  him  as 
your  commander.  I  shall  go  along  as  GOVERNOR  and  commander- 
in-chief  IN  CALIFORNIA. 

This  fine-spun  distinction  seems,  in»fact,  the  corner  stone  of 
General  Kearny's  claim  to  have  been  the  commander  of  the  expe 
dition,  for  while  he  constantly  persists  in  that  pretension,  he  as  con 
stantly  admits  that  Commodore  Stockton  was  the  governor  and  com 
mander  in  the  territory. 

I  do  not  refer  to  this  because  I  attach  any  value  to  the  point  in 
itself.  For  any  argument  that  I  desire,  the  version  given  by  Gen 
eral  Kearny  would  answer  as  well  as  any  other;  for  if  Commodore 
Stockton  was  governor  and  commander-in-chief  of  California^  his 
authority  was  sufficient  for  my  case,  since  Los  Angeles,  where  I 
believe  the  charges  are  all  laid,  is  certainly  within  that  province. 
But  the  distinction  drawn  in  the  version  given  by  the  witness  was 
considered  important  by  him,  and  that  version  is  contradicted;  and 
this  is  the  point  of  view  in  which  I  present  it.  It  is  contradicted 
by  Commodore  Stockton,  Lieutenant  Gray,  Lieutenant  Minor,  and 
the  certificate  of  Lieutenant  Rowan,  all  whose  concurrent  testi 
mony  affirms  that  Commodore  Stockton's  reservation  of  authority 
related  to  the  command-in-chief  of  the  expedition,  without  the 
words  of  qualification  to  whrch  General  Kearny  testifies;  and  it  is 
worthy  of  note  that,  though  a  witness  of  the  prosecution,  Captain 
Turner,  was  present  at  the  address,  the  prosecution  have  not  thought 
proper  to  bring  him  to  sustain  General  Kearny  thus  contradicted. 

A  few  detached  passages  from  the  testimony  will  show  how  ma 
terially  General  Kearny  is  contradicted,  in  other  respects,  upion  this 
point  of  the  command: 

General  Kearny:  "By  the  act  of  Commodore  Stockton,  the  sail 
ors  and  marines  were  placed  under  my  command.  I  commanded 
them  on  the  expedition." 

Commodore  Stockton:  "During  which  march  I  performed  all 
the  duties  which  I  supposed  devolved  on  the  commander-in-chief. 

General  Kearny:  ^1  exercised  jio  command  whatever  over  Com 
modore  Stockton,  nor  did  he  exert  any  whatever  over  me." 

Commodore  Stockton;  "I  was  in  the  habit  of  sending  my  aid-de 
camp  to  General  Kearny  to  inform  him  what  time  I  wished  to  move 
in  the  morning;  and  I  always  decided  on  the  route  we  should  take, 
and  when  and  where  we  should  encamp." 

General  Kearny:  '/The  troops  under  my  command  marched  into 
Los  Angeles  on  the  10th  of  January." 


69 

Commodore  Stockton:  "And  when  \ve  marched  into  the  city,/ 
led  the  way,  at  the  head  of  the  advanced  guard" 

General  Kearny:  "  On  the  march,  I  at  no  time  considered  Com 
modore  Stockton  under  my  direction,  nor  did  I,  at  any  time,  consi 
der  myself  under  his." 

Commodore  Stockton:  "I  observed  the  guns  being  unlimbered;  I 
was  told  it  was  done  by  order  of  General  Kearny  to  return  the  fire 
of  the  enemy;  I  ordered  the  guns  limbered  up,  and  the  forces  to 
cross  the  river  before  a  shot  was  fired."  "I  observed  that  the  men 
of  the  right  flank  had  been  formed  into  a  square,  and  General 
Kearny  at  their  head.  I  sent  my  aid-de-camp,  Mr.  Gray,  to  Gene 
ral  Kearny,  with  INSTRUCTIONS  to  move  that  square,  and  two  pieces 
of  artillery,  immediately  up  the  hill." 

General  Kearny:  "During  our  march  many  messages  were 
brought  to  |me  from  Commodore  Stockton;  those  messages  I  looked 
upon  as  suggestions  and  expressions  of  his  wishes.  I  have  since 
then  learned  that  he  considered  them  in  the  light  of  orders." 

Commodore  Stockton:  "I  sent  for  Captain  Emory;  I  asked  him 
by  whose  order  the  camp  was  making  below  the  hill.  He  said  by 
General  Kearny's  order.  "I  told  him  to  go  to  General  Kearny  and 
tell  him  that  it  was  my  order  that  the  camp  should  be  immediately 
moved  to  the  top  of  the  hill."  "I  sent  my  aid-de-camp,  Mr.  Gray, 
to  General  Kearny,  with  instructions  to  move,"  &c.  "The  witness 
(Commodore  Stockton)  in  enumerating  some  of  the  orders  given  and 
some  of  the  details,  executed  by  himself,  meant  merely  to  cite  in 
stances  in  which  General  Kearny  recognized  and  acknowledged  his 
(the  witness's)  command-in- chief  on  the  field  of  battle,  as  well  as 
in  the  march." 

General  Kearny:  "During  our  march,  his  (Commodore  Stockton's) 
authority  and  command,  though  it  did  not  extend  over  me,  or  over 
the  troops  which  he  had  himself  given  me,  extended  far  beyond," 
&c. 

Commodore  Stockton:  "Commodore  R.  F.  Stockton  begs  leave  to 
add,  &c.,  that  he  wishes  to  be  understood  as  meaning  distinctly  to 
convey  the  idea  that  General  Kearny  was  fully  invested  with  the 
command  of  the  troops  in  the  battles  of  the  8th  and  9th  of  Janu 
ary,  SUBJECT  to  the  orders  of  him,  the  witness,  as  COMMANDER-IN- 
CHIEF.  Most  and  nearly  all  the  execution  of  details  was  confided 
to  General  Kearny  as  SECOND  in  command."  "He  could  not  attempt 
to  enumerate  and  specify  the  many  and  important  acts  of  General 
Kearny  as  SECOND  in  command."  "When  the  troops  arrived  at  San 
Bernardo,  I  made  my  head-quarters  a  mile," or  two  miles,  in  advance 
of  the  camp;  and  I  SENT  to  General  Kearny  to  send  me  the  marines 
and  a  piece  of  artillery,  which  was  immediately  done."  "/ORDERED 
the  troops  all  to  lie  down,"  fyc.  "After  having  DIRECTED  the  troops 
to  be  formed,  &c.,  /  took  the  marine  guard  and  two  pieces  of  artil 
lery,"  &c.  "  On  my  return,  /  gave  ORDERS  where  the  different  offi 
cers  and  troops  were  to  be  quartered,  and  ORDERED  the  samejtfag," 
&c. 

General  Kearny:  "  I  exerted  no  command  whatever  over  Commo 
dore  Stockton,  nor  did  he  exert  any  whatever  over  me." 


70 

Lieutenant  Gray: — u  Question.  Did  you  bear  an  order  from  Com 
modore  Stockton  on  the  8th  of  January,  in  the  field,  to  General 
Kearny? — if  so,  state  the  order  and  all  the  circumstances. 

"  Answer.  I  did  bear  an  order  from  Commodore  Stockton  to  Gen 
eral  Kearny  on  the  8th  of  January,  on  the  field  of  battle.  The 
enemy  had  been  observed  to  withdraw  his  guns  from  the  height. 
The  commodore  directed  me  to  go  to  General  Kearny,  and  say  to 
him,  to  send  a  square  and  a  field  piece  immediately  up  on  the  height, 
to  prevent  the  enemy's  returning  with  their  guns.  I  went  and  gave 
him  the  order,  and  on  my  return  to  Commodore  Stockton,  observed 
the  division,  or  square,  of  General  Kearny  moving  toward  the 
hill. 

"Question.  Did  you  bear  that  order  to  General  Kearny  in  your 
character  of  aid-de-camp  to  Commodore  Stockton,  the  commander- 
in-chief? 

"  Answer.  Yes. 

"  Question  by  the  judge  advocate.  Do  you  recollect  the  words 
and  manner  in  which  you  delivered  that  order;  did  you  deliver  it 
so  that  General  Kearny  must  have  received  it  as  an  order,  or  merely 
as  a  suggestion? 

u  Answer.  I  carried  it  as  an  order,  in  the  usual  respectful  way. 
How  General  Kearny  received  it,  I,  of  course,  cannot  say.  He 
did  not  show,,  by  his  manner,  that  it  was  disagreeable  to  him,  ac 
cording  to  the  best  of  my  recollection." 

Finally,  I  shall  conclude  this  point  by  showing  that  General 
Kearny  did  not,  and  could  not,  at  any  time,  have  considered  him 
self  the  commander  of  the  expedition,  or  of  the  troops  composing 
it,  and  was  not  so  considered  by  the  army  officers  who  had  accom 
panied  him  into  California,  and  were  there.  Because, 

1.  The  place  which  General  Kearny  held  in  the  expedition  was 
that  which  had   been  before  assigned  to  a'lieutenant  of  the  navy, 
serving  under   Commodore    Stockton,    and    this    General    Kearny 
knew.     This  is  the  testimony  of  Commodore  Stockton: 

a  After  the  forces  had  been  paraded  preparatory  to  ^he  march, 
and  I  was  about  mounting  my  horse,  General  Kearny  came  to  me 
and  inquired,  <  who  was  to  command  the  troops?'  I  said  to  him, 
Lieutenant  Rowan,  first  lieutenant  of  the  Cyane,  would  command 
them.  He  gave  me  to  understand  that  he  would  like  to  command 
the  troops,  and  after  some  further  conversation  on  the  subject,  I- 
agreed  to  appoint  him  to  the  command,  and  immediately  sent  for 
Lieutenant  Rowan,"  &c. 

2.  Because,  at  the  moment  of  receiving  the  appointment,  he  was 
informed  that  the  command-in-chief  was  reserved  by  Commodore 
Stockton.     This  is  Commodore  Stockton's  testimony  to  this  point: 

"I  immediately  sent  for  Lieutenant  Rowan,  and,  assembling  the 
officers  that  were  near  at  hand,  stated  to  them  that  General  Kearny 
had  volunteered  to  take  command  of  the  troops,  but  that  I  retained 
my  own  position  as  commander-in- chief  .  I  directed  my  aid-de-camp, 
and  the  commissary  who  was  with  me,  to  take  a  note  of  "what  I  said 
on  the  occasion." 


71 

And  to  the  same  effect  is  the  testimony  of  Lieutenant  Gray  and 
Lieutenant  Minor,  and  the  certificate  of  Lieutenant  Rowan. 

3.  Because  both  General  Kearny,  and  the  officers  under  him,  re 
ceived  and  obeyed  the  orders  of  Commodore  Stockton,  in  some  in 
stances  in  opposition    to  those  first  given  by  General   Kearny,  both 
on  the  march  and  in  the  battles.     The  evidence  on  this  point  need 
not   be   recapitulated.     Commodore   Stockton    testifies   to  it,  Lieu 
tenant    Gray  testifies    to  it,  Lieutenant    Minor    testifies    to  it,  and 
Lieutenant  -  Emory  testifies    to  have    received  and    obeyed    orders 
from  Commodore  Stockton. 

4.  Because    Lieutenant    Emory,  attached    to    General    Kearny's 
dragoon  escort,  and  acting  as  assistant    adjutant  general,  did   not 
make  his  official  report    of    losses    in  action  in    the  expedition  to 
General    Kearny,    but    to    Commodore    Stockton.     True,    General 
Kearny  says   this  was   done  "without  liis   knowledge  or  consent;" 
but    that  is  only  the   stronger  proof  that    he  was  not  regarded  or 
lespected  a"s  the  commander-in-chief,  even  by  his  confidential  sup 
porters  and  military  family. 

5.  Because   he  admitted   to  Colonel   Russell,  as  appears   repeat 
edly    in  Colonel    Russell's    testimony,  that    he  was  serving    under 
Commodore    Stockton,  and  had    been  serving  under   him  from  San 
Diego. 

6.  Because,  when  I  delivered  to  him,  and  he  read  in  .my  presence, 
my  letter  to  him  of  17th  January,  in  which  is  this  passage  : 

"I  learned  also  in  conversation  with  you  that,  on  the  march  from, 
San  Diego,  recently,  to  this  place, you  entered  upon,  and  discharged 
duties  implying  an  acknowledgement  on  your  part  or  SUPREMACY  to 
Commodore  Stockton,"  he  made  no  denial  of  it,  or  objection  to  it. 

7.  Because,  on  the  16th  of   January,  he   applied,  in   writing,  to 
Commodore  Stockton,    "advising"    and  "offering"    "to  take  one- 
half"   of   the  command,  and  march  to  form  a  junction,"  &c.,  ad 
dressing  Commodore  Stdckton  in  that  letter  as  "governor  of  Cali 
fornia,  commanding  United  States  forces."      Bancroft  Libr 

On  the  eighth  day  of  the  trial  General  Kearney  testified  as  follows  : 

"Question.  Do  you  know  whether  the  officers  of  the  battalion 
raised  it  and  marched  it  under  commission  from  Commodore 
Stockton  ? 

"Answer.  I  have  always  'understood  that  Lieutenant  Colonel 
Fremont  had  raised  that  battalion  under  the  direction  of  Commo 
dore  Stockton. 

"Qustion.   With  what  commission  ? 

"Answer.  I  never  heard  of  Commodore  Stockton  conferring  a 
commission  on  Lieutenant  Colonel  Fremont,  further  than  having 
appointed  him  military  commandant  of  California. 

The  object  of  this  inquiry  was  not,  by  any  means,  to  get  an  op 
portunity  to  discredit  the  witness.  The  object  was  to  ascertain  be 
fore  the  court  that  the  battalion  was  enlisted,  organized,  and 
officered  exclusively  under  naval  authority,  and  so,  of  course,  sub 
ject  to  the  orders  of  the  naval  commander;  and  also  to  ascertain  if 
these  facts  were  not  within  the  knowledge  of  the  witness  when  he 
attempted  to  get  command  of  the  battalion,  in  opposition  to  Com- 


72 

modore  Stockton  ;  both  being  inquiries  pertinent  to  the  issues  of  the 
trial,  and  the  facts  being  what  was  desired.  But  the  nature  of  the 
last  answer  was  such  as  to  leave  the  original  inquiries  unsettled, 
and  to  open  a  new  one. 

The  answer  was  this:  u I  never  heard  of  Commodore  Stockton's 
conferring  a  commission  on  Lieutenant  Colonel  Fremont,  further 
than  having  appointed  him  military  commandmant  of  California.'7 

And  the  new  question  raised  was  whether,  in  fact,  the  witness  had 
''never  heard"  of  a  matter  so  notorious  in  that  country.  Accord 
ingly,  on  the  next  day,  General  Kearney  having  mentioned  the  re 
ceipt  on  the  16th  December,  1846,  of  a  certain  communication  from 
Commodore  Stockton,  this  question  was  put  : 

Question.  Did  not  Commodore  Stockton,  in  that  communication, 
inform  you  that  Captain  Fremont  had  been  appointed  by  him  MAJOR, 
and  Lieutenant  Gillespie,  of  the  marines,  captain  in  the  California 
battalioif  ?  * 

And  a  copy  of  the  paper  having  been  shown  to  the  witness,  he 
answered  : 

Answer.  Among  the  papers  sent  to  me  by  Commodore  Stockton, 
on  the  16th  December,  was  a  copy  of  his  letter  to  the  Navy  Depart 
ment,  dated  August  28,  1846,  the  second  paragraph  of  which  states 
that  he  had  organized  a  Californian  battalion  of  mounted  riflemen, 
by  the  appointment  of  all  the  necessary  officers,  and  received  them 
as  volunteers  in  the  service  of  the  United  States  ;  thai  Captain 
Fremont  was  appointed  major ,  and  Lieutenant  Gillespie,  captain  of 
the  battalion. 

Again,  on  the  13th  day  of  the  trial,  two  other  papers  were  shown 
to  the  witness,  with  this  question  : 

"Were  not  copies  of  these  two  papers,  describing  him  (Fremont) 
as  Major  Fremont,  among  those  furnished  to  you  by  Commodore 
Stockton  at  San  Diego.  And  were  not  copies  of  them  filed  in  the 
War  Department  by  you  since  your  return  from  California,  and 
after  your  arrival  in  this  city  in  September  last? 

"Answer.  (After  reading  over  the  papers,)'!  think  that  copies  of 
these  papers  were  furnished  to  me  by  Commodore  Stockton.  To 
the  latter  part  of  the  question,  'were  they  not  filed  by  you  in 
the  War  Department  since  your  return  from  California,  and  after 
your  arrival  in  this  city  in  September  last.'  I  see  on  the  papers 
the  certificate  of  Captain  Townsend  that  I  did  so  ;  /  think  Captain 
Towns  en  d  is  mistaken." 

But  on  the  following  day  he  admitted  that  Captain  Townsend 
was  not  mistaken  ;  that  the  papers  had  been  put  into  his  hands  by 
Commodore  Stockton  in  December,  1846,  and  had  been  filed  by 
him  in  the  war  office  as  late  as  the  21st  September  last.  From  all 
this,  however,  it  only  resulted  that  he  had  seen  of  the  appointment 
of  Fremont  as  major  ;  that  he  had  "never  heard"  of  it,  was  not  yet 
disproved. 

This  was  accomplished  in  his  testimony  on  the  ninth  day,  when 
he  admitted  as  follows  : 

"Commodore  Stockton  did  inform  me,  in  the  conversation  al 
luded  to  between  us,  that  California  had  been  conquered  in  July  and 


73 

August  of  the  same  year,  (this  conversation  was  held  in  Decem 
ber,)  and  that  Major  Fremont  had  gone  to  the  north  to  raise  men,'7 
&c. 

In  the  same  connexion,  and  for  the  same  purpose,  the  question 
arose,  whether  Lieutenant  Gillespie,  of  the  marine  corps,  was  not 
also  an  officer  of  the  battalion;  and  the  answer  of  the  witness  was 
again  such  as  not  only  to  leave  the  original  question  open,  but  to 
raise  the  new  one,  which  brings  the  subject  within  this  branch  of 
my  defence.  The  witness's  answer  was  as  follows: 

"  Captain  Gillespie  had  marched  with  me  from  San  Diego  to  Los, 
Angeles,  and  was  serving  under  me.  If  his  company  was  with  the 
California  battalion  I  DID  NOT  KNOW  IT." 

It  appeared,  however,  on  examination,  that  the  same  communi 
cation  (of  28th  August,  1846)  that  informed  the  witness  that  Fre 
mont  had  been  appointed  major  of  the  battalion,  also  informed  him 
that  Gillespie  had  been  appointed  captain  in  it.  It  further  appear 
ed,  that  in  the  surgeon's  list  of  killed  and  wounded  in  the  actions 
of  8th  and  9th  January,  furnished  by  Lieutenant  Emory  to  General 
Kearny,  aftid  by  him  sent  to  the  department,  Captain  Gillespie  is 
reported  as  an  officer  of  the  California  battalion;  and  Captain  Gil 
lespie  himself  gave  the  following  emphatic  testimony: 

"Question.  Did  you  at  any  time  communicate  to  General  Kearny 
your  rank  and  position  in  the  California  battalion?  If  so,  when 
and  where  was  that  communication  made? 

Answer.  /  did  communicate  to  General  Kearny  my  position  in 
the  battalion,  on  the  5th  of  December,  1846,  about  one  o'clock  in 
the  day,  in  the  aiountains  about  half-way  between  Santa  Maria'and 
Santa  Isabel.  When  I  met  him  I  was  at  the  head  of  a  detachment 
of  volunteers  and  •  sailors,  I  having  been  ordered  by  Commadore 
Stockton  to  proceed  to  Warner's  Pass,  to  communicate  with  Gen 
eral  Kearny." 

These  inquiries  concerning  the  raising  and  officering  of  the  bat 
talion  were  to  matters  connected  intimately  with  the  issues  of  the 
trial,  and  the  answers  of  the  witness  seemed  to  indicate  a  con 
sciousness  of  it.  But  I*lo  not  desire  to  present  them  in  any  other 
light  than  as  instances  of  defective  and  equivocating  memory,  and 
in  that  view  affecting  the  general  credit  of  his  testimony. 

Under  the  same  infirmity,  of  memory  I  am  willing  to  class  the 
extraordinary  facility  of  omission  betrayed  by  the  witness,  in  his 
manner,  which  seerns  to  be  habitual,  of  half-telling,  where  whole 
telling  is  essential.  Thus:  On  the  third  day  of  the  trial  he  com 
mences  an  answer  in  these  words:  "About  the  14th  January,  1847, 
I  received  from  Lieutenant  Colonel  Fremont  a  communication, 
dated,"  &c. — the  inference  being,  of  course,  that  my  communica 
tion  was  voluntary;  the  fact  (and  most  important  one,  too)  being, 
that  it  was  drawn  out  by  no  less  than  four  importunate  letters  that 
I  had  before  received.  Again,  in  continuation  of  the  same  narra 
tion:  "On  the  day  subsequent,  viz.,  on  the- 17th  January,  Lieuten 
ant  Colonel  Fremont  came  to  my  quarters,  and  in  conversation," 
&c. — the  inference  being,  of  course,  that  I  went  at  my  own  in- 


74 

stance,  whereas  the  fact  (most  material  and  relevant,  and  deciding 
the  character  of  the  interview)  turned  out,  that  I  went  in  compli 
ance  with  the  written  request  of  the  witness  to  see  me  "  on  busi 
ness."  Again,  same  day:  "I  was  first  met  by  a  detachment  from 
Commodore  Stockton,"  &c.  .  .  .  "It  came  from  Commodore 
Stockton,  to  give  me  information,"  &c.;  the  inference  being, 
that  it  went  voluntarily,  or  was  sent  by  Commodore  Stock 
ton  of  his  own  motion:  the  important  fact  appearing,  however, 
when  Commodore  Stockton  came  on  the  stand,  three  weeks  after, 
that  it  was  sent  out  at  the  written  request  of  General  Kearny,  for 
a  party  "  to  open  communication  with  him,"  &c.  So,  in  .the  same 
letter,  making  this  application,  he  writes  to  Commodore  Stockton 
as  follows:  "  Your  express,  by  Mr.  Carson,  was  met  on  the  Del 
Norte,  and  your  mail  must  have -reached  Washington  at  least  ten, 
days  since" — omitting  the  material  fact,  that  Mr,  Carson,  in  addi 
tion  to  being  met,  was  likewise  turned  back;  and  leaving  the  infer 
ence  that  he  had  gone  on.  Again,  in  his  testimony  on  the  sixth 
day  of  the  trial,  speaking  of  his  position  on  the  hill  of  San  Bernar 
do,  the  witness  says:  "  I  stated  to  the  doctor  and  others,  that  we 
would  leave  next  morning,  which  we  accordingly  did;  Lieutenant 
Gray,  of  the  navy,  with  a  gallant  command  of  sailors  and  marines, 
having  come  into  our  camp  the  night  previous" — the  inference  be 
ing,  that  Lieutenant  Gray  and  his  command  came  voluntarily,  or  by 
chance,  into  the  camp;  the  fact  being,  that  it  was  a  detachment  of 
215  men,  sent  from  San  Diego  expressly  for  the  relief  of  General 
Kearny's  camp,  and  in  pursuance  of  his  repeated  urgent  calis  for 
succor — one  of  them  (that  by  Lieutenant  Beale,  Mr.  Carson,  and 
the  Indian)  conveyed  through  the  enemy's  lines  a»id  an  insurgent 
population,  under  circumstances  of  devotion  and  courage  unsur 
passed,  but  no  mention  of  which  is  found  in  the-  official  report,  or 
in  any  part  of  the  testimony  of  General  Kearny. 

I  give  these  as  examples,  taken  only  from  two  days'  proceedings, 
of  a  vast  deal  of  the  same  sort  of  testimony,  running  through  Gen 
eral  Kearny's  examination. 

The  testimony  of  General  Kearny,  in  relation  to  the  charges,  is 
the  next  point  to  which  I  advert  under  this  head  of  my  defence. 
On  the  sixth  day  of  the  trial,  General  Kearny  testifies  as  follows: 

"The  charges  on  which  Lieutenant  Cqlonel  Fremont  is  now  ar 
raigned  are  not  my  charges.  I  preferred  a  single  charge  against 
Lieutenant  Colonel  Fremont.  The  charges  on  which  he  is  now  ar 
raigned  have  been  changed  from  mine.  * 

Question  (by  Lieutenant  Colonel  Fremont.)  Did  you  give  any 
information  to  the  person  who  drew  up  the  seventh  specification 
under  the  first  charge,  in  relation  to  the  cannon? 

Answer.  I  DID  NOT." 

This  testimony  was  promptly  communicated  to  the  War  Office, 
by  my  counsel,  for  the  purpose  of  ascertaining  upon  whose  (if  not 
General  Kearny's)  information  the  charge  had  been  drawn  up,  as 
master  necessary  to  be  known,  unless  I  would  proceed  in  my  de 
fence  against  unknown  and  secret  prosecutors  ;  the  adjutant 
general,  by  direction  of  the  Secretary  of  War,  returned  for  answer 


75 

the   emphatic   assurance,  that   the   charges   and  specifications  pro 
duced  to  the  court  "  were  based  upon  facts  alleged  and  officially  re 
reported  to  the  department  by  General  Kearny ;  and  it  is  not  known 
or  understood  that  any  charge  or  specification  has  been  introduced, 
based  on  facts  derived  from  any  other  source  whatever." 

In  addition  to  this  positive  contradiction  by  the  department,  the 
charges  came  to  the  court  certified  upon  their  face  as  being  pre 
ferred  "upon  information  of  Brigadier  General  S.  W.  Kearny ;" 
and  myself  and  counsel  are  further  informed,  by  the  judge  advocate, 
that  the  seventh  specification  of  the  first  charge  is  copied  literally 
from  the  charge  furnished  by  General  Kearny  in  his  own  hand 
writing. 

This  inquiry  into  the  charges,  leads  naturally  to.  the  subject 
upon  which  that  inquiry  arose,  viz:  a  certain  mountain  howitzer, 
lost  by  General  Kearny  at  the  battle  of  San  Pasqual,  and  recovered 
by  me  at  the  capitulation  of  Couenga.  The  inquiry  was  not 
originally  made,  with  any  view  or  expectation  that  an  untrue 
answer  would  be  given  to  it,  and  hence  an  opportunity  arise  for 
contradicting  the  testimony  of  the  witness.  On  the  contrary,  the 
object  of  the  inquiry  was  truth.  It  was  to  ascertain  whether  the 
recovery  by  me,  of  a  cannon  so  lost  by  General  Kearny,  had  been 
reported  by  him  to  the  department;  and,  if  not,  the  argument 
would  be  to  the  impeachment  of  the  temper  and  motive  towards 
me;  for  the  loss  of  cannon  is  always  a  source  of  mortification,  and 
its  recovery  a  subject  of  gratulation  and  honorable  report.  It 
turned  out  that  the  recovery  had  not  been  reported,  but  to  escape 
the  inference  thus  raised,  the  witness  pleaded  want  of  sufficient 
knowledge  of  the  fact.  This,  then,  became  the  point  at  issue;  and 
to  say  that  this  is  an  incidental  question,  upon  which  the  answer  of 
the  witness  must  suffice,  whether  true  or  false,  is  to  say  thai  he  may 
escape  from  the  consequences  of  one  wrong,  by  committing 
a  greater;  that  a  fact  cannot  be  proved  going  to  impeach  his 
motives  if  he  chooses  to  deny  it  with  a  falsehood.  But  it  is 
the  rule  of  law  and  justice  that  "  a  man  shall  not  profit  by  his  own 
wrong;53  and,  therefore,  I  did  n<?t  consider  myself  concluded  by 
the  answer  of  the  witness;  but,  finding  by  inspection  of  the 
charges,  that  the  witness  (who  I  had  understood  was  the  sole 
accuser  against  me)  had  sufficient  knowledge  concerning  the  can 
non,  to  impute  the  having  of  it  to  me  as  a  crime,  I  inferred' that 
he  ought  to  have  had  sufficient  knowledge  of  it,  to  report  the 
gaining  of  it  to  my  credit.  Hence,  I  continued  the  inquiry  with 
the  following  question: 

"In  the  seventh  specification,  under  the  first  charge,  you  charge 
Lieutenant  Colonel  Fremont  with  refusing  to  give  up  two  cannon 
which  had  been  brought  from  Fort  Leavenworth,  and  which  were 
then  at  San  Gabriel.  Will  you  state  what  cannon  they  were,  how 
they  were  brought  from  Fort  Leavenworth,  and  how  they  got  to 
San  Gabriel?" 

And  hence  arose  the  sweeping  declarations  already  examined, 
that  these  charges  "were  riot  his;"  that  they  "had  been  changed 


76 

^  i 

from  his;''  and  that  he  "  did  not"  furnish  the  information  concern 
ing' the  cannon  on  which  the  seventh  specification  of  charge  first 
was  drawn  up.  After  which  he  continued  his  answer  in  these 
words: 

4 

u  The  two  howitzers,  however,  referred  to,  are  the  two  howitzers 
brought  by  the  first  dragoons  from  Fort  Leavenworth  to  California; 
one  of  them,  as  was  previously  stated,  was  lost  at  San  Pasqual; 
the  other  we  took  with  us. 

Question.  Do  you  know  that  one  of  those  cannon  was  the  one 
lost  by  you  at  San  Pasqual? 

Answer.  I  DO  NOT." 

Two  days  after,  he  comes  into  court  with  this  "  explanation:" 
"In  reading  over,  in  the  papers  this  morning  the  proceedings  of 
Monday,  I  find  the  following  question  put  to  me  by  the  accused, 
and  my  answer^thereto,  as  follows: 

Question.  Do  you  know  that  one  of  those  cannon  was  the  one 
lost  by  you  at  San  Pasqual? 
Answer.   I  do  not. 

<CI  have  now  to  explain,  that  I  had  no  personal  knowledge  of  if; 
I  had  a  knowledge  of  it  FROM  AN  OFFICIAL  REPORT  made  to  my  staff 
officer  BY  LIEUTENANT  COLONEL  COOKE." 

Now,  on'this  point,  General  Kearny  is  contradicted  by  his  own 
witness;  for  Lieutenant  Colonel  Cooke  testifies  to  having  received 
from  General  Kearny  orders  in  relation  to  the  cannot  before  he 
ever  made  any  report  on  the  subject. 

This  is  from  Major  Cooke's  testimony  in  chief,  delivered  on  the 
fourteenth  day  of  the  trial: 

"On  the  24:th  of  March,  I  rode  out  from  Los  Angeles  to  the  mis 
sion  of  San  Gabriel,  accompanied,  &c.  I  called  on  Captain  Owens 
at  his  quarters,  and  shortly  after  asked  to  look  at  the  artillery. 
He  showed  them  to  me  in  the  court  of  the  mission,  and  I  observed 
two  mountain  howitzers,  which  I  believed  had  been  brought  to  that 
country  by  the  dragoons.  I  had  received  verbal  instructions  from 
General  Kearny,  by  Captain  Turner,  to  h'ave  them  turned  over  to 
company  C,  under  my  command;  and  had,  before  I  left  town,  or 
dered  mules  and  drivers  to  be  sent  after  THEM. 

This  relates  to  occurrences  of  the  24=th  of  March,  whilst  the 
"  verbal  instructions"  referred  to,  afterward  ascertained  to  be  writ 
ten  memoranda,  were  issued  from  Monterey  about  the  1st  of  March, 
and  the  only  report  made  upon  the  subject  by  Major  Cooke  wa£  of 
March  25. 

This  is  Major  Cooke's  testimony  to  these  points,  (eighteenth  day 
of  the  trial:) 

u  Question.  Is  your  letter  or  report,  of  the  25th  March,  which  was 
read  in  your  cross-examination  on  Thursday,  your  official  report  to 
your  superior  officer?  and  does  it  refer  to  the  same  events  as  those 
narrated  in  your  testimony?  and  did  you  ever  make  any  other 


77  . 

official  report  of  those  occurrences  to  General  Kearny,  or  to  any 
other  officer  for  him? 

Answer.  It  was  my  official  report.  It  refers  to  the  same  subject 
as  my  evidence  in  chief.  I  do  not  remember  having  made  any 
OTHER  report  to  him  or  to  any  one  else. 

Question.  Did  you  have  any  verbal  or  special  order  in  relation 
to  ordnance,  arms,  &c.? 

Answer.  I  had  some  verbal  orders  in  relation  to  arms,  communi 
cated,  however,  in  the  form  of  written  memoranda.  *  '  *  * 
I  have  them  not  here.  I  lost  all  my  papers  by  an  accident,  &c. 

Question.  Will  you  state  the  tenor  of  those  orders  and  instruc 
tions,  giving  the  words  as  far  as  possible,  and  whom  they -came 
from? 

Answer.  THEY  WERE  FROM  GENERAL  KEARNY.  I  was  directed, 
I  believe,  to  put  the  HOWITZERS  in  charge  of  the  dragoons.  * 

I  received,  at  the  same  time,  an  official 
letter  from  General  Kearny." 

A  copy  of  this  official  letter  was  produced  the  next  day,  and 
found  to  be  dated  at  Monterey,  March  1,  which  fixes  the  time  of 
those  "verbal  orders"  or  "written  memoranda."  Finally,  on  the 
nineteenth  and  twentieth  days  of  the  trial,  Major  Cooke  again 
testifies,  concerning  the  same  verbal  instructions,  as  follows  :. 

"Under  ordinary  circumstances,  I  should  have  deemed  it  my  duty 
to  have  enforced  my  orders  in  relation  to  the  artillery,  f  (funded  on 
the  verbal  orders  of  the  general.  The  verbal  orders  alluded  to 
might  be  considered  as  giving  higher  importance,  in  my  view,  to  the 
object  to  be  attained^  which  was  to  turn  over  to  company  C,  1st 
dragoons,  the  two  mountain  howitzers." 

From  all  which,  it  results  that  General  Kearny's  first  information 
concerning  the  cannon  was  not  received  through  Major  Cooke's 
report,  but  that  the  report  resuUed,  in  fact,  from  orders  about  the 
cannon,  given  by  General  Kearny  several  weeks  before  the  report 
was  made. 

The  first  great  allegations,  then,  made  by  General  Kearny  to 
escape  from  the  Original  simple  and  comparatively  innocent  fact 
supposed  by  the  inquiry  concerning  the  cannon,  are  contradicted, 
in  their  whole  essence,  by  the  official  assurance  of  the  Secretary  of 
War,  by  the  charges  as  they  are  certified  by  the  judge  advocate  to 
the  court,  and  by  the  original  draft  of  accusations  against  me  in 
General  Kearny's  own  hand;  while  his  subsequent  "explanation" 
to  escape  from  this  labyrinth,  by  attempting  to  draw  a  distinction 
between  personal  knowledge  and  official  knowledge,  involves  him  in 
the  repudiation  of  his  own  orders,  and  in  a  doable  contradiction 
with  himself  and  with  Major  Cooke,  his  own  witness. 

I  think  it  proper,  I  think  it  my  duty,  to  introduce  here  some 
maxims  of  the  law,  which,  I  am  advised,  are  recognised  in  all 
courts. 

"Where  it  turns  out  that  a  witness's  testimony  is  corruptly  false 
in  any  particular,  it  should  be  entirely  disregarded  by  the  jury." 
"A  witness's  credibility,  being  seriously  impeached' by  written. 


78 

or  other  plain,  deliberate  contradictory  statement  by  him,  and  not 
supported,  ought,  it  would  seem,  to  be  entirely  rejected." 

"But  where  a  party  speaks  "to  a  fact,  in  reference  to  which  he 
cannot  be  presumed  liable  to  mistake,  if  the  fact  turn  out  other 
wise,  it  is  extremely  difficult  to  exempt  him  from  the  charge  of  de 
liberate  falsehood;  and  courts  of  justice,  under  such  circumstances, 
are  bound,  upon  principles  of  la.w,  morality  and  justice,  to  apply 
the  maxim,  falsus  in  uno,  falsus  in  omnibus" — FALSE  IN  ONE,  FALSE 
IN  ALL. 

(See  Phillipps  on  Evidence,  v.  3,  pp.  39,7  and  772.) 
v  / 

Mr,  PRESIDENT  :  The  length  of  this  defence  precludes  the  neces 
sity  of  recapitulation.  I  omit  it,  and  go  to  the  conclusion  with  a 
few  brief  reflections,  as  pertinent,  I  trust,  as  they  are  true. 

I  consider  these  difficulties  in  California  .to  be  a  comedy — (very 
near  being  a  tragedy) — of  three  errors:  first,  in  the  faulty  orders 
sent  out  from  this  place;  next,  in  the  unjustifiable  pretensions  of 
General  Kearny;  thirdly,  in  the  conduct  of  the  government  in 
sustaining  these  pretensions.  And  the  last  of  these  errors  I  con 
sider  the  greatest  of  the  three. 

Certainly  the  difficulties  in  California  ought  to  be  inquired  into; 
but  howl  Not  by  prosecuting  the  subordinate,  but  the  principals; 
not  by  prosecuting  him  who  prevented,  but  him  who  would  have 
made  civil  war.  If  it  was  a  crime  in  me  to  accept  the  governor 
ship  from  Commodore  Stockton,  it  was  a  crime  in  him  to  have  be 
stowed  it;  and,  in  either  event,  crime  or  not,  the  government  which 
knew  of  his  intention  to  appoint  me,  and  did  not  forbid  it,  has  lost 
the  right  of  prosecuting  either  of  us. 

My  acts  in  California  have  all  been  with  high  motives,  and  a 
desire  for  the  public  service.  My  scientific  labors  did  something  to 
open  California  to  the  knowledge  of  my  countrymen;  its  geogra 
phy  had  been  a  sealed  book.  My  military  operations  were  con 
quests  without  bloodshed;  my  civil  administration  was  for  the 
public  good.  I  offer  California,  during  my  administration,  for  com 
parison  with  the  most  tranquil  .portions  of  ;the  United  States:  I 
offer  it  in  contrast  to  the  condition  of  New  Mexico  during  the  same 
time.  I  prevented  civil  war  against  Governor  Stockton,  by  refus 
ing  to  join  General  Kearny  against  him:  I  arrested  civil  wrar  against 
myself,  by  consenting  to  be  deposed — offering  at  the  same  time  to 
resign  my  place  of  lieutenant  colonel  in  the  army. 

I  have  been  brought  as  a  prisoner  and  a  criminal  from  that  coun 
try.  I  could  return  to  it,  after  this  trial  is  over,  without  rank  or 
guards,  and  without  molestation  from  the  people,  except  to  be  im 
portuned  for  the  money  which  the  government  owes  them'. 

I  am.  now  ready  to  receive  the  sentence  of  the  court. 


